1230 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF HAWAII 3 4 SUSAN K. FORSYTH, ) Civil No. 95-00185ACK Individually and as ) 5 Personal Representative ) Pages 1,230 - 1,395 of the Estates of June M. ) 6 Forsyth and William D. ) Forsyth, and WILLIAM F. ) 7 FORSYTH, JR., ) ) 8 Plaintiffs, ) ) 9 vs. ) ) 10 ELI LILLY AND COMPANY, ) an Indiana corporation, ) 11 et al., ) ) 12 Defendants. ) __________________________) 13 14 TRANSCRIPT OF PROCEEDINGS 15 The above-entitled matter came on for trial on 16 Tuesday, March 16, 1999 at 9:10 a.m. at Honolulu, 17 Hawaii. 18 BEFORE: THE HONORABLE ALAN C. KAY 19 United States District Judge District of Hawaii 20 21 REPORTED BY: TINA M. STUHR, RPR, CSR #360 Notary Public, State of Hawaii 22 PACIFIC REPORTING SERVICES UNLIMITED, INC. 23 733 Bishop Street Suite 2090, Makai Tower 24 Honolulu, Hawaii 96813 (808) 524-PRSU 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1231 1 APPEARANCES: 2 For Plaintiffs: ANTHONY ANDERSON VICKERY, ESQ. Archer, Waldner & Vickery 3 2929 Allen Parkway Suite 2410 4 Houston, Texas 77019 5 KAREN BARTH, ESQ. Baum, Hedlund, Aristei, Guilford 6 & Downey 12100 Wilshire Boulevard 7 Suite 950 Los Angeles, California 90025 8 For Defendant: ANDREW SEE, ESQ. 9 MICHELLE R. MANGRUM, ESQ. Shook, Hardy & Bacon L.L.P. 10 One Kansas City Place 1200 Main Street 11 Kansas City, Missouri 64105 12 EDMUND BURKE, ESQ. Burke Sakai McPheeters Bordner 13 Iwanaga & Estes 737 Bishop Street 14 Suite 3100 - Mauka Tower Honolulu, Hawaii 96813 15 Also Present: Catherine Itai 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1232 1 I N D E X 2 WITNESS ON BEHALF OF PLAINTIFFS 3 RIGGS ROBERTS, Ph.D. PAGE 4 Cross-Examination Continued by Mr. See 1235 Redirect Examination by Mr. Vickery 1273 5 Recross-Examination by Mr. See 1295 6 RONALD SHLENSKY, M.D. 7 Direct Examination by Mr. Vickery 1300 Cross-Examination by Mr. See 1345 8 9 10 EXHIBITS ADMITTED INTO EVIDENCE: PAGE 11 Exhibit 1067 - FDA Talk Paper dated 1364 8/1/91 and Illustrative Chart 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1233 1 (Whereupon, the following proceedings were had 2 in open court out of the presence of the jury.) 3 THE CLERK: Civil No. 95-00185ACK, Susan K. 4 Forsyth, et al. versus Eli Lilly and Company, et al. 5 MR. VICKERY: Good morning, Your Honor. Andy 6 Vickery and Karen Barth for the Forsyths. 7 THE COURT: Good morning. 8 MR. SEE: Good morning, Your Honor. Andy See 9 along with Michelle Mangrum and Ed Burke for Eli Lilly 10 and Company. 11 THE COURT: Good morning. We have a juror 12 problem, a potential problem. Over the weekend my 13 clerk was called by Juror No. 10, Robert Asari, who 14 reported that they just learned this weekend that his 15 wife owns some Lilly stock. Apparently, their broker 16 had purchased it and they were unaware of it until 17 this weekend when they received a Lilly brochure. 18 What's the pleasure of the parties? 19 MR. VICKERY: Your Honor, I think that the 20 plaintiffs would ask to thank him for his candor and 21 excuse him from further jury service. 22 MR. SEE: Your Honor, under the circumstance, I 23 believe that's probably appropriate. 24 THE COURT: Well, this is unique. You're both 25 in agreement. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1234 1 MR. VICKERY: It's rare. It is very rare, Your 2 Honor. 3 THE COURT: All right. We will excuse Juror 4 No. 10. He did want to continue, but... 5 Also, I should let you know that I have a 6 judges' meeting at noon, so I think we're going to 7 have to take a longer break, probably from twelve to 8 two. Anything else we should take up at this time? 9 MR. VICKERY: Nothing here, Your Honor. 10 MR. SEE: Nothing at this time, Your Honor. 11 THE COURT: All right. We'll take a short 12 break for the jury. 13 (Whereupon, a recess was taken at 9:15 a.m.) 14 (Whereupon, the following proceedings were had 15 in open court in the presence of the jury.) 16 THE CLERK: Civil No. 95-00185ACK, Susan K. 17 Forsyth, et al. versus Eli Lilly and Company, et al. 18 MR. VICKERY: Good morning, Your Honor. Andy 19 Vickery and Karen Barth for Bill and June -- Bill and 20 Susan Forsyth. 21 THE COURT: Good morning. 22 MR. SEE: Good morning, Your Honor. Andy See 23 along with Michelle Mangrum and Ed Burke for Eli Lilly 24 and Company. 25 THE COURT: Good morning. Good morning, ladies PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1235 1 and gentlemen of the jury. 2 Please proceed, Mr. See. 3 MR. SEE: Thank you, Your Honor. 4 CROSS-EXAMINATION (Continued) 5 BY MR. SEE: 6 Q. Dr. Roberts, good morning. 7 A. Good morning. 8 Q. Just to bring us back to where we were when we 9 adjourned on Friday, you have the small copies of the 10 blowups in front of you, and we had gotten down to 11 your appointment with Mr. Forsyth on the first -- I 12 beg your pardon, on the 4th of January 1993. You have 13 that one in front of you there? 14 A. Very good. Yes, I do. 15 Q. And right when we broke, we noted that 16 Mr. Forsyth had reported to you that he was 17 co-dependent on his wife? 18 A. I recall that. 19 Q. All right. And again, the report from him was 20 that was a new feeling for him? 21 A. That would be a code that I would use to 22 myself, also to remind me of my methods in coaching 23 and teaching a patient because their training involves 24 an understanding of what's happening to them, and 25 therefore, we would want to label and identify an PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1236 1 experience that he was having called "Co-dependent on 2 my wife." As you recall, that word has some 3 controversy attached to it, and we wanted to know -- 4 we wanted him to be able to know what it meant. 5 Q. Now, I'm going to go to the next blowup, 6 Doctor, which is the appointment of one week later, 7 January the 11th of 1993. 8 Now, the indication for Mr. Forsyth taking his 9 Xanax -- he was now taking six times a day with Xanax, 10 and he indicated that one time he had taken seven 11 tablets? 12 A. That's correct. 13 Q. And again, this was Mr. Forsyth increasing the 14 dose of his Xanax? 15 A. That's correct. 16 Q. And again, just to remind us, as part of your 17 training process, you had worked with him to teach him 18 that if he was experiencing more anxiety, then he 19 could increase the dosage of Xanax on his own? 20 A. That's correct. 21 Q. And now with the Pamelor, we're up to 60 22 milligrams? 23 A. That's correct. 24 Q. And that's part of the gradual increase in the 25 Pamelor dosage? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1237 1 A. Yes. 2 Q. Now, we note again the entry, "Co-dependent 3 upon my wife." This again would be what Mr. Forsyth 4 reported to you? 5 A. Yes. 6 Q. Now, Dr. Roberts, I want to specifically ask 7 you about that, Mr. Forsyth's perception of being 8 co-dependent upon his wife. Is it not correct that by 9 this time, January the 11th of 1993, Mr. Forsyth was 10 powerfully attached to his wife? 11 A. In an anxiety syndrome, there are emotions and 12 feeling states that cause a person a sense of 13 insecurity and anxiety that in the presence of other 14 people, those anxiety feelings seem to improve. That 15 is the experience of someone who is having anxiety, 16 they will seek out and identify others, so in addition 17 to what might be traditionally thought of as a 18 psychodynamic or emotional need called co-dependency, 19 there was, in addition, a physical syndrome 20 experienced as anxiety that was correctable by the 21 presence of a trustworthy other. 22 Q. So by this time, by January 11 of '93, it was 23 Mr. Forsyth's anxiety and his fear that caused him to 24 be unable to separate himself from his wife? 25 A. I would adventure to say that it is difficult PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1238 1 to discern whether and how to separate these two 2 entities, but he is a gentleman, who for a very long 3 period of time, operated independently and effectively 4 and was suffering an anxiety syndrome which then put 5 him in the position of discovering need for his wife 6 to asswage or to dampen and to make less this 7 syndrome. 8 Q. And Mr. Forsyth, having formerly been an 9 independent person, now feeling co-dependent upon his 10 wife, but would you also say that that showed the 11 strength and the powerful nature of his anxiety, that 12 it would drive him to be dependent upon her to feel 13 secure? 14 A. I believe that that is a reasonable 15 description. I think that the -- that I would prefer 16 to look at it from the perspective that he had 17 discovered a method of treating himself properly. He 18 had discovered a method of self-protection that was 19 effective, and that was the presence of his wife. 20 Now, this is all part of a patient education 21 package, right, that comes along when you come to see 22 a psychiatrist, you receive alternative 23 interpretations to your own, and hopefully, by 24 training him and helping him and providing him with 25 proper medication, we could assist him in dealing with PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1239 1 this syndrome so that he would no longer have this 2 sense of need to be in the presence of his wife, which 3 was disturbing for him. 4 Q. Now, you also indicated that there were some 5 positive signs. You said, "Today he was on his own 6 for the first time and more up," but then also a note 7 that "People had told him that he appeared to be sad 8 and withdrawn," correct? 9 A. That's correct. 10 Q. Now, we'll go down to the next visit, which is 11 a week later, January the 18th of '93, and in your 12 notes, I think you have written the initials OOC; is 13 that right? 14 A. That's correct. 15 Q. And that's your shorthand for out of control? 16 A. That's correct. 17 Q. And when you noted "out of control depression," 18 it was your meaning that his depression was out of 19 control? 20 A. That was -- at the beginning of the hour he was 21 reporting his experience from the time of the last 22 meeting, and he was describing the sense of 23 overwhelmed by depression. 24 Q. And there's the entry again of "No work." The 25 question I want to ask you is, in his own mind PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1240 1 Mr. Forsyth associated his lack of meaningful activity 2 in the work area with the development of his 3 depression; isn't that right? 4 A. I believe it became to be associated together. 5 That he did not have anything to do, that's correct. 6 Q. Now, he indicates or your note is, "Day 7 co-dependent 100 percent." Now, this is an indication 8 about his feeling dependent upon his wife that really 9 is worse than the week before, is it not? 10 A. It would seem by the notes that there may have 11 been a slight increase in his sense of dependency upon 12 her. 13 Q. And then there's a note that, "she," that would 14 be Mr. Forsyth's wife? 15 A. I believe so. 16 Q. "Understands depression." Did Mr. Forsyth 17 indicate to you that his wife, in fact, had 18 experienced depression herself? 19 A. I believe it indicated more that she was a 20 source of understanding for him, a source of security 21 and understanding for him. I cannot recollect whether 22 or not it indicated that she herself had experienced 23 depression. I don't have that recollection. 24 Q. Now, you then have the note, "Too much 25 religion," and then an arrow pointed to the word PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1241 1 "stress." Now, would that be a report from 2 Mr. Forsyth about his feeling about the religious 3 activities and how they impacted on him? 4 A. I believe that's correct. 5 Q. And would it be true that as of the time 6 Mr. Forsyth is reporting this, he is telling you that 7 his family's religious activities are a stress to him? 8 A. That was correct. 9 Q. Now, the next series of notes here, it 10 indicates that "She is fearful of me getting healthy 11 again." Can you explain that for us? 12 A. Well, followed by the words, "Type A, up and 13 about. Spent no time with her. Now on top of each 14 other." Okay. So that in the context of your 15 question, I think that whole territory must be read. 16 Q. The "Type A" and "Spent too much time with 17 her," did you take that as a reference to what he had 18 been like before he became ill? 19 A. Correct. And "Now on top of each other," 20 right, unused to this situation of illness, this was a 21 stress to the family. 22 Q. And actually, isn't it the case that 23 Mr. Forsyth, because he -- because of his anxiety and 24 his fear, was bonded so closely with his wife, that he 25 actually, as a part of his illness, blamed her for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1242 1 that in an odd way? 2 A. I believe that that is an interpretation. If 3 you'll excuse me, please, I guess that you're 4 attempting to be a little analytical here, sir. 5 Q. Well, no, I'm asking you to be the analyst, 6 Doctor. 7 A. All right. I would suggest that what we see is 8 that there's an anxiety syndrome that has gone on. We 9 have a sick individual who has turned to his wife for 10 comfort. They are on top of each other and have no 11 longer -- did not have a long-term experience dealing 12 with one another effectively at close quarters, and in 13 that that was the case, it was a very challenging 14 adjustment. In fact, it almost caused a spinout of 15 their relationship. 16 Now, in that blame is a natural human emotion, 17 that's going to be one of the stressors that 18 accompanies this situation, but I would not suggest 19 that we stop with the simple analytic suggestion that 20 his blame of her was all that was going on here. He 21 actually felt that she was fearful of his getting 22 better because, paradoxically, she might have enjoyed 23 having him around a little bit. I don't know. I 24 mean, that's another alternative. 25 For us to sit here and try to interpret a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1243 1 situation that can be described through a combination 2 of emotional physical syndrome called affective 3 disorder and anxiety, I think, is presumptive and 4 without him here to report, it could be 5 misinterpreted. 6 I think it's better for us to stick with an 7 understanding of what's happened to a man that's been 8 overwhelmed by a depressive disorder, and he has done 9 his best to treat himself properly, which was to move 10 closer to his wife. 11 Q. I wonder if I could ask you to -- your 12 deposition there is in front of you. 13 A. Okay. 14 Q. If you could turn to Page 45. I just want to 15 refresh your recollection about your deposition 16 answers. 17 A. My interpretation on another day. Go ahead. 18 Q. Yeah, up at the top of Page 45. I've asked you 19 what the significance of the entry is, and you're 20 referring to it and you say, "We're now on top of each 21 other, co-dependent 100 percent." And then, "Humans 22 being the way they are, he would blame his wife in a 23 strange way." 24 A. I said the same thing today. I'm not changing 25 that interpretation. Blame is a very human emotion. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1244 1 It's not unusual to find blame in a human condition. 2 I was hoping to be able to expand our understanding 3 here of the circumstances that would create blame, and 4 I'm not trying to suggest there was not any blame 5 here. I'm not changing my deposition. 6 Q. No, I wasn't suggesting that you were. I just 7 wanted to refresh your recollection -- 8 A. That's fine. 9 Q. -- about what it was that we talked about on 10 that occasion. Now, the -- he notes or you note the 11 entry, "Can't take stress." Did that apply to 12 Mr. Forsyth? 13 A. Please help me find that more quickly for you. 14 Oh, I see it. Thank you. All right. 15 Q. The question that I want to ask you is, the 16 stress that he's referring to there, at least one of 17 the stresses is that he's having to spend so much more 18 time with his wife, especially because of his anxiety 19 and his fears? 20 A. Right. That what we're hoping to be able to do 21 is assist him back into functioning. It appears as 22 though one of the measures that we're using here are 23 what is it that he can do, the work idea. That he 24 cannot take stress, and below that you'll see, 25 "Starting to handle phone calls." This is the level PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1245 1 of stress that apparently he is able to handle. 2 I'm attempting to find measures that will 3 assist me in knowing what kind of progress we're 4 making to assist him back into functioning. 5 Q. And the reference to "Keep going back to old 6 ways," is that a reference that he was falling back 7 into the habits that he had prior to his becoming ill 8 instead of actively finding a way to manage the 9 stress? 10 A. I can see how you would interpret it that way. 11 I think in the context, he's doing slightly better, 12 but he keeps falling back to the old ways of feeling 13 dependent and unable to function, I think is the 14 context of that entry. 15 Q. All right. Thank you. Now, we'll move on to 16 the next blowup. And we're still on the January 18th 17 visit, January 18 of '93. And we have another entry, 18 "Out of control," followed by "disorganization and 19 confusion." 20 A. Correct. 21 Q. Now, the disorganization and confusion, these 22 are consistent with the symptoms of major depression? 23 A. I believe that that is -- I would agree with 24 you, yes. 25 Q. And again, he talked about the fact that he had PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1246 1 almost been divorced, right? 2 A. Correct. 3 Q. And there's an entry here down under 2D that 4 says, "Anger at her." This would be a reference to 5 his wife? 6 A. I have an independent recollection that he also 7 had trouble with his business back in a time when he 8 needed to go to work very diligently to help that 9 business survive. That apparently that might have -- 10 this may be referring to both situations 11 simultaneously. That here he's retired for four to 12 five years. He feels that he handled it well, but 13 almost divorced. 14 Now, he recalls a disciplined focus of 15 attention. There may have been a time, independent 16 recollection here, where he had to go to work very 17 diligently to make sure that his business survived. 18 He had to quit his alcohol, kind of thing, and we 19 would be able to find out through other sources the 20 date of that experience. We'd be able to know about 21 what he had to do to make his business survive, but he 22 made it. He wasn't afraid to be alone at that time. 23 Now, it may have been what we were doing was 24 recapping the sequence of events that has led up to 25 depression at this time in this discussion. It may be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1247 1 that there is a simultaneous trail that we're on, 2 chasing the same trail at the same time, seeing that 3 there may have been a time where he was not afraid to 4 be alone, even in his retirement, working diligently, 5 and then focused attention upon survival came up. 6 "There was separation, and it kept me running." 7 Q. Just so we are clear about the orientation, the 8 note "Anger at her," would have referred to anger 9 directed toward June, his wife? 10 A. Probably. Yeah. Again, another normal emotion 11 in conflict in marriage. 12 Q. Now, there's an entry down at the bottom of 13 this blowup, under E and F, "Wife and kids so totally 14 into spirituality," and then under that "Fighting God 15 back." Were those references that dealt with 16 Mr. Forsyth's continued difficulty in accepting his 17 family's emphasis on religious activity and 18 spirituality? 19 A. I think that when someone, who is unable to 20 understand the intensity of belief, is around those 21 who intensively believe, there is a natural tendency, 22 and it's a very natural tendency, to withdraw and to 23 object and to choose thoughts that would, in fact, 24 come out in the expression as though I'm fighting God 25 back. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1248 1 Q. Now, we'll move on to the next, which would 2 begin the visit for January 25 of 1993. And again, 3 one more week has passed and Mr. Forsyth has come in 4 for his visit, and we note toward the top of this 5 visit, the entry, "I don't have anything to do." 6 A. Correct. 7 Q. My question is, the fact that Mr. Forsyth saw 8 himself as having nothing to do and being 9 unproductive, was that a continued concern that he 10 had? 11 A. Yes. 12 Q. Now, again, there's a reference to weight loss. 13 Again, that's a symptom consistent with an ongoing 14 major depression? 15 A. That's correct. 16 Q. There's still the entry, "Still co-dependent," 17 and is the examinate note there reflective of the 18 discussion you had with him? 19 A. That's correct. 20 Q. Trying to get him to understand that dynamic 21 with his wife? 22 A. That's correct. 23 Q. And then there's an entry, I think your notes 24 actually say, "Fearful to be on me own." Would that 25 just be a writing error? You mean, "Fearful to be on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1249 1 my own"? 2 A. That's correct. 3 Q. And that, again, reflected Mr. Forsyth 4 indicating to you that he was simply afraid to be by 5 himself? 6 A. Correct. 7 Q. And again, going down, the entries, "Feels 8 wounded and fearful." Again these are the emotions 9 and feelings that Mr. Forsyth is expressing to you? 10 A. Correct. 11 Q. Now, let me ask you about this entry here where 12 he says, "His old modus OP, period." Is that modus 13 operandi? 14 A. Yes, what he used to do. 15 Q. MO? 16 A. Yes, his MO. 17 Q. His usual way of doing things? 18 A. That's right. 19 Q. And you've noted there, "Up at six. Coffee as 20 a method of avoidance, June. Take off for something 21 to do." In that entry, is that a description of 22 Mr. Forsyth telling you how he managed to handle the 23 stress and conflict with his wife; that is, he would 24 just get out of the house? 25 A. That's correct. That's not how he would have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1250 1 said it. That's my shorthand to summarize our 2 interaction. 3 Q. And, in fact, isn't it also correct from 4 your -- from your interaction with Mr. Forsyth, that 5 his literally, physically leaving the house, leaving 6 the place where his wife was, was his method of 7 exercising control over the situation? 8 A. That's his old modus operandi. That's his old 9 way of doing things. 10 Q. Now, again, we have the same entries about 11 depression, about disorganization, and then you've 12 noted that "He has a trapped feeling now." That 13 reference refers to that day; that is, January 25, 14 1993? 15 A. You've skipped over some things. 16 Q. If there is something of significance, let's 17 absolutely cover it. 18 A. We're going through a period of training here 19 where I'm asking him to explore more desirable than to 20 run. I'm encouraging him to see the value of 21 understanding what's happening to him. We're 22 exploring his personality style. So in follow through 23 with the training he's just received, right, that 24 we're now looking at a style and discussing how the 25 depression occurred. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1251 1 The trapped feeling now comes after a "no 2 control over retirement." It is a repeat in the theme 3 that you're attempting to address. It is occurring at 4 a time where he's being encouraged to identify and 5 name new feelings. 6 Q. And the feeling you're encouraging him to talk 7 about, the new feelings he is having and what he 8 indicates to you is he's having a feeling of being 9 trapped? 10 A. Correct. 11 Q. And then there's a note here, "Panic attacks 12 history." This is Mr. Forsyth telling you that he had 13 had panic attacks? 14 A. That's correct. 15 Q. Now, there's an entry that is below that 16 somewhat -- 17 A. Excuse me. It also does indicate that that's 18 why we've used Xanax at that point, too, the panic 19 attacks, and his adjustment of the dosages to an 20 appropriate level were meant to assist him in treating 21 that panic. 22 Q. The Xanax actually is a tranquilizer? 23 A. That's correct. 24 Q. A medicine that is intended to help symptoms of 25 anxiety? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1252 1 A. That's correct. 2 Q. And the panic attack or the acute, immediate 3 episodes of anxiety he was having, that would be the 4 kind of event that could be helped or were intended to 5 be helped by the Xanax? 6 A. And the other medicines, that's correct. 7 Q. Now, if we could go to the analysis of the 8 trapped feelings, it says, "Now I have trapped 9 feelings," and then it has some factors under that. 10 And it indicates, "He must be here for medication." 11 So he was -- was he saying there that one of the ways 12 I feel trapped is I have to go to the doctor and I 13 have to take medicine because I'm ill? 14 A. That's correct. We're going through this 15 sequence of exploring feelings and he now is 16 dissecting one of the very challenging feelings he's 17 experiencing. 18 Q. And the second entry there is, "Must be with 19 June." And, again, he is indicating that part of the 20 trapped feeling that he has is the feeling that he 21 must be with his wife because of his anxiety and fear 22 in being alone? 23 A. Correct. 24 Q. And then again, the entry that we've seen 25 before, "I haven't got anything to do with my time," PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1253 1 and that also was a factor in Mr. Forsyth's feeling 2 trapped? 3 A. That's correct. 4 Q. I want to ask, in the trapped feeling that 5 Mr. Forsyth had, as he explained it to you, in your 6 analysis of that feeling of being trapped, did you 7 also believe, as part of your psychiatric analysis, 8 that Mr. Forsyth may also be having a syndrome of 9 feeling impending doom and feeling physical experience 10 of these panic attacks when he would have them? 11 A. That is part of what is so powerfully -- drives 12 people so powerfully in anxiety disorders, that's 13 correct. 14 Q. Now, it indicates, "Couldn't face all of the 15 problems." That was one of the things bothering 16 Mr. Forsyth, that he simply found himself unable to 17 cope with or deal with the problems that were facing 18 him every day? 19 A. Correct. 20 Q. And he says, "More than I can solve." Then 21 he -- there's an entry of two lines. It says, 22 "Solution is to running, run away from this." Is that 23 the description of Mr. Forsyth's habit or pattern of 24 how he had dealt with conflict and stress in his life 25 up to this time? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1254 1 A. That's correct. That is, as you recall, we're 2 going through an examination of his personality style, 3 and he is accurately describing his history of how he 4 would have managed this in the past. 5 Q. So in the past, Mr. Forsyth's method of dealing 6 with these feelings of stress and so on or panic, 7 would be to literally physically absent himself from 8 the situation, leave the house? 9 A. We saw that earlier when he would leave for 10 work in the morning after his coffee. Remember? 11 Q. Now, I know in your chart there's a big -- 12 right about here there's the big word "no" and a star? 13 A. Right. 14 Q. So I'll just write that on here. And was the 15 meaning of that that you were discussing with him that 16 that was a way that he should try to avoid and be able 17 to deal with his conflict and stresses in some other 18 way? 19 A. Correct. When you examine yourself and you 20 discover that you're having trouble and you can 21 identify the area of trouble, it's easier to know what 22 you're saying no to. If you're aware of what's going 23 on, I feel like I want to get up and run away. No, 24 let's look at something -- some alternatives. 25 Q. This is your attempt, as his therapist, to work PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1255 1 with him and try to help him find a different way to 2 deal with these problems? 3 A. That's correct. 4 Q. Now, there's an entry here, "Environmentalist. 5 I have to do what they want done." The question that 6 I have for you about that entry is, was it the case 7 that a principal issue with Mr. Forsyth was his own 8 feeling that he needed to be in control of the 9 situation? 10 A. That's correct. That's a very natural human 11 emotion. 12 Q. Now, this blowup goes to your next visit, which 13 is February 1st. You have that in your chart? 14 A. Yes. 15 Q. And now we're up to 75 milligrams on the 16 Pamelor. This nortriptyline entry is the same thing 17 as Pamelor? 18 A. That's correct. 19 Q. And he's indicating that he's taking five and a 20 half Xanax, and "Also, still complains of 21 fearfulness." Looking through the visits as we 22 followed on the charts, Mr. Forsyth's fear was a major 23 concern to him; isn't that right? 24 A. That's a reasonable part of the entire picture, 25 yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1256 1 Q. Now, let's go to the next and last blowup. And 2 this one starts out with the visit on February the 9th 3 of 1993. At this time, Mr. Forsyth is up to the 75 4 milligrams of Pamelor. So again, the drug dose is 5 increasing to see if that antidepressant won't provide 6 him with relief for his depression? 7 A. That's correct. 8 Q. And the entry here is, "Two days of emotionally 9 drained ifs and what ifs." Was Mr. Forsyth going 10 through a process of asking himself over and over and 11 over again, questions about what he should do and what 12 should happen and that sort of thing? 13 A. That's a reasonable interpretation, yes. 14 Q. Now, he indicates, "Never even took an" -- ASA 15 stands for aspirin? 16 A. Correct. 17 Q. "Never even took aspirin my whole life." Was 18 this entry the indication that Mr. Forsyth sort of 19 resented having to take medication now that he was 20 ill? 21 A. Yes. He is sick and he's not liking it. It's 22 a challenge for him. 23 Q. The entry, "No joy with grandchildren," again, 24 that's a symptom that is consistent with his major 25 depression, that he is unable to experience pleasure PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1257 1 with the things that usually would please him? 2 A. That's correct. 3 Q. Now, there's a line here that we didn't get on 4 this blowup, but I want to put it on. It says, "Was 5 constantly on the move." Was that Mr. Forsyth's 6 description of how his life had been prior to the time 7 that he had retired and gotten sick? 8 A. That's correct. 9 Q. And was one of the things that was bothering 10 Mr. Forsyth during the time of your treatment with 11 him, that he had lost this former life of his and 12 really was mourning the loss? 13 A. He had retired and mourned the loss of a 14 previous robust lifestyle. 15 Q. That that previous robust lifestyle was now 16 gone? 17 A. According to his interpretation. 18 Q. Now, there's an entry further down the page. 19 He talks about this four-year estrangement. This 20 would be the reference to his marriage? 21 A. I believe so. 22 Q. And then the entry is, "Now attached to wife. 23 Bonded. Fearful." Would this be another description 24 of the co-dependency that Mr. Forsyth talked about? 25 A. I agree that that is a repeat of that theme. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1258 1 Q. "Just barely keeping up." Would it be correct 2 to say that that was -- that is not really a very 3 positive entry? 4 A. That is a repeat description of his sense now 5 that he has lost his robust lifestyle. He's not able 6 to keep up with what he would like to be able to be 7 doing. 8 Q. Now, we see the entry, "Keeping moving was the 9 solution." This was Mr. Forsyth's own view of how he 10 had been able to cope and manage his handling of 11 conflict and life issues? 12 A. That's correct. 13 Q. Before he got sick? 14 A. That's correct. 15 Q. And he was -- at this time, he was appreciating 16 and mourning the fact that he wasn't going to be able 17 to do that anymore? 18 A. That's correct. Or he felt like he was not 19 going to be able to do that anymore. 20 Q. Then there's an entry emotion -- I can't even 21 say it. 22 A. Labile. 23 Q. "Emotionally labile." Would you tell us what 24 that means? 25 A. That he cried easily or that he would show PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1259 1 emotion much more easily than he was used to. 2 Q. And would that also be consistent with his 3 major depression? 4 A. That's correct. 5 Q. Then an entry, "Disturbed over the small 6 stuff." It was the small details, the petty things 7 about life that really bothered him? 8 A. Not exclusively. I think that that -- I think 9 that that entry would indicate that it is unusual for 10 someone to be disturbed over the small stuff in 11 addition to being disturbed over things that would 12 ordinarily disturb you. 13 Q. And Mr. Forsyth was disturbed over -- 14 A. The small stuff. 15 Q. -- the small stuff? 16 A. Getting more and more disturbed easily. 17 Q. And then the entry, "Low self-worth." Could 18 you explain to us, in language that lay people will 19 understand, what does low self-worth really mean? 20 A. I think in this context it means a sincere 21 feeling inside the individual that he himself does not 22 have value. 23 Q. Now, if we can, let's move to the visit of the 24 22nd of February of 1993. And in that visit, is it 25 correct, that Mr. Forsyth still was carrying the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1260 1 diagnosis of major depression with anxiety? 2 A. I'm sorry, would you please repeat that? There 3 was a page that was skipped, and I wanted to be sure 4 that we had not missed something of value. 5 Q. Absolutely, and if there is anything that we 6 do, please do bring it up. What I was asking was as 7 of the time of the February 22nd visit, Mr. Forsyth 8 was still under the diagnosis of major depression with 9 anxiety? 10 A. That's correct. 11 Q. Now, he indicates, "Constantly thinking about 12 myself." Of what significance did that have for his 13 condition? 14 A. That's -- in depression, it's not unusual for 15 the mind to become repetitious in its thoughts. 16 That's one of the symptoms. Obsessive repetition of 17 thoughts is one of the symptoms of depression and it's 18 a marker that I can use to let me know that I'm -- I 19 have not yet corrected the disorder. 20 Q. This would be thinking the same thought over 21 and over and over and over again? 22 A. Correct. 23 Q. Now, the entry is that "He wakes up at 5:00 24 a.m. with scary movie feeling." Is that a shorthand 25 that you use? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1261 1 A. That's -- in order to help me understand the 2 feeling state of anxiety and fear, right, what can you 3 relate it to that's familiar to everyone, but how you 4 feel during a scary movie. So I would use that 5 shorthand to remind me that he was getting, in the 6 middle of his gut, all right, feelings that were 7 terrifying. 8 Q. So the entry would be that he was waking up 9 early in the morning with feelings in his gut that 10 were terrifying; is that right? 11 A. That's correct. 12 Q. Now, the next entry is, "He had a history of a 13 high level of paranoia." Can you explain for us what 14 paranoia is? 15 A. Preoccupied by concerns that things around you 16 have personal significance, I would say. I think 17 that, you know, to imagine that somebody's comment was 18 directed toward you or that some action was directed 19 towards you or that a preoccupation with thoughts 20 that, what otherwise might be left unnoticed, actually 21 had a meaning toward you. 22 Q. Now, the indication is, "Now feels guilty, 23 self-absorbed, and obsessed." First, the guilt 24 feelings, those are a part of the symptoms of a major 25 depression? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1262 1 A. That's correct. One might feel very guilty if 2 ordinarily you consider yourself to be an effective 3 go-getter, living the robust lifestyle, and can no 4 longer do that for yourself or for your family or for 5 those around you. 6 Q. And I want to test your memory here. Isn't it 7 correct that when Mr. Forsyth talked with you about 8 that he was feeling guilty, he related it to two 9 things; one, that he felt guilty because of his 10 inability to function, and the second, he felt guilty 11 because he felt he was unable to care for his family? 12 A. I think those are reasonable interpretations, 13 although my memory does fail me. I suppose that's in 14 my deposition. 15 Q. I think if we look at Page 69, if I could just 16 refresh your recollection about that. Let's see. 17 Yeah, if you look at Page 69 down at Line 22, you see 18 the question there, "'Now feels guilty,' was there 19 anything particularly he was feeling guilty about?" 20 And the answer, "Oh, his inability to function, taking 21 care of his family." 22 Does that refresh your recollection about it? 23 A. That's a very reasonable interpretation of the 24 circumstances, and I perhaps -- although, my memory is 25 not as keen now as it was at the time of the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1263 1 deposition, I would not object to what I said there. 2 Q. Now, the self-absorbed and obsessed, is that a 3 reference to the fact that Mr. Forsyth, as you 4 indicated in the first line, he was constantly 5 thinking about himself and the obsessed thoughts over 6 and over and over again? 7 A. Yes. 8 Q. Now, there's indicated here again, "History, 9 running away." Is that the reference to his habitual 10 method of keeping control over problems and conflicts 11 by getting away from them instead of facing them and 12 solving them? 13 A. That's correct. 14 Q. And then the entry, "I've lost control of 15 everything." And that's a statement that Mr. Forsyth 16 made to you? 17 A. That's correct. 18 Q. And it would be accurate, would it not, to 19 categorize that statement as a statement of despair? 20 A. I would not be able to go that far with my own 21 interpretation. I think that it was a statement of 22 reality for him, a feeling that he honestly had. 23 Q. Lost control of everything? 24 A. A loss of control over everything. I think 25 that despair, for me, at this stage, would be going PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1264 1 too far. He's still with me. He's still working with 2 me. 3 Q. Now, a feeling of lost control of everything 4 would be especially difficult for someone who is used 5 to being in control of the situation; isn't that 6 right? 7 A. This has been especially difficult, yes. 8 Q. And Mr. Forsyth was one of those people who had 9 been used to being in control of things and so his 10 feelings of being -- of having lost control of 11 everything was particularly difficult for him; isn't 12 that right? 13 A. I would agree with you. 14 Q. Now, you've indicated after nortriptyline, 15 "Something continuing to trigger the depression." By 16 that are you saying that the Pamelor, or the 17 nortriptyline, which is another name for it, was not 18 providing Mr. Forsyth the relief from depression that 19 you hoped it might? 20 A. That's correct. 21 Q. And there was something still going on that was 22 causing him to be so depressed? 23 A. And in addition, traditionally, we give these 24 medicines six to eight weeks to work. That has been 25 our training, and we would also like to be able to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1265 1 raise these medicines to an adequate drug level or 2 serum level. He is an older gentleman, and so I chose 3 or selected 75 milligrams as my target dose, but that 4 something, even though we had been very patient and 5 worked with this particular medicine, for that longer 6 period of time, it had not offered us the relief that 7 we had hoped it would. 8 Q. So the Pamelor, anyway, had not been able to 9 provide him with relief from his depression? 10 A. That's correct. 11 Q. Now, is it the case with antidepressant drugs, 12 generally, that there are some antidepressant drugs 13 that just don't work for some people? 14 A. Yes, that is correct. 15 Q. And that applies to all of them across the 16 board? 17 A. Yes, that's correct. 18 Q. So that your practice is, you really just have 19 to try one and see if it provides relief for this 20 particular patient? 21 A. That is the current state of our art. 22 Q. And was it in 1993? 23 A. And it was in 1993. 24 Q. And if you go -- give a long enough trial of 25 the drug and it really hasn't provided relief, then PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1266 1 the general practice is to think, well, that drug just 2 didn't help this patient, so we'll try another one and 3 see if that can provide relief? 4 A. That's correct. 5 Q. And that's what you did in this case? 6 A. That's correct. 7 Q. So the plan was to prescribe Prozac for 8 Mr. Forsyth, correct? 9 A. That's correct. 10 Q. And February 22nd would have been the first 11 time that you had prescribed Prozac for him? 12 A. That's correct. 13 Q. And you decided to prescribe at the same time a 14 drug called Trazodone? 15 A. I have that indicated. Trazodone, at that time 16 in 1993, was used frequently to assist people with 17 sleep, if they needed that assistance, while taking 18 Prozac. 19 Q. And although I don't think there's a specific 20 entry in your chart, was it not the case that you also 21 prescribed a medication called Inderal for 22 Mr. Forsyth? 23 A. That is entirely possible. 24 Q. And the Inderal that you prescribed would have 25 been for -- to help out his anxiety symptoms? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1267 1 A. That's right. In that the scary-movie feeling 2 was still around, that Inderal is very valuable to 3 assist in correcting that feeling. 4 Q. So to the best of your understanding, 5 Mr. Forsyth actually took Prozac on February 22nd? 6 A. That's my understanding. 7 Q. And then you have a note that he called you the 8 next morning and was excited and feeling about 9 200 percent better? 10 A. That's correct. 11 Q. Now, as I understand it, Dr. Roberts, February 12 the 22nd was the last time you actually saw 13 Mr. Forsyth? 14 A. That's correct. 15 Q. You had a telephone call with him later on, but 16 the 22nd was actually the last time you actually saw 17 him? 18 A. That's correct. 19 Q. In the field of psychiatry, in particularly, in 20 prescribing medications, is there something known as 21 the placebo effect? 22 A. Absolutely. 23 Q. And is the placebo effect simply this, that 24 when a patient receives a medication, the power of the 25 mind can be very strong, and sometimes people will PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1268 1 believe that they ought to feel better, because 2 they're taking a medication, and because of that 3 strong belief, they may actually feel better, even 4 though it might not be the medication at all that's 5 causing the better feelings? I don't know if I've -- 6 A. That's one of the interpretations of the 7 placebo effect, but when you know nothing, there are 8 more interpretations. 9 Q. In the normal situation, is it not the case for 10 most people that antidepressant medications, including 11 Prozac, will take two or three or sometimes four weeks 12 to have an antidepressant effect? 13 A. That has traditionally been our experience, and 14 it continues to be the recommendation for our use of 15 antidepressant medications. It is not always that 16 way, however, and especially since the advent of the 17 new medicines beginning with Prozac, now five SSRIs 18 and other types of specific medications, specifically 19 designed medications, very frequently you'll find a 20 reaction or a response in a short period of time. 21 Q. Now, as I understand it, on February the 24th, 22 which is two days after your last appointment, you 23 received a telephone call from Mr. Forsyth's son, 24 correct? 25 A. I do not have the date of that telephone call, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1269 1 but yes, I did receive that telephone call. 2 Q. And that had to do with Mr. Forsyth, Jr. 3 indicating to you that there was a feeling among the 4 family that Mr. Forsyth should go to the hospital? 5 A. That's correct. 6 Q. And you actually spoke with Mr. Forsyth, Sr. at 7 that time on the telephone, right? 8 A. That's correct. 9 Q. And that was the last time then that you 10 actually spoke with him? 11 A. That's correct. 12 Q. Now, is it correct, Dr. Roberts, that prior to 13 the time you prescribed Prozac for Mr. Forsyth, you 14 had read the package insert; that is, the prescribing 15 information provided by Eli Lilly and Company? 16 A. I'm sure that I had several times, yes. 17 Q. Now, when you prescribe -- and I'm talking 18 about your practice back in February and March of 19 1993. When you prescribe medication for your 20 patients, was it your practice at that time to take 21 into account the potential benefits that the 22 medication might provide and weigh that against the 23 potential risks that the medication might have? 24 A. And include extensive training, which is my 25 practice with my patients, yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1270 1 Q. And you went through that kind of looking at 2 the benefits and looking at the potential risks when 3 you prescribed Prozac for Mr. Forsyth? 4 A. That's correct. 5 Q. And I take it that when you -- when you 6 actually make the decision to prescribe a medication 7 for one of your patients, and again I'll go back to 8 February and March of '93, that you only make that 9 decision to prescribe the medication when you've 10 satisfied yourself that, in fact, for this particular 11 patient, in the circumstances of the patient, that, in 12 fact, the potential benefits of the medication do 13 outweigh the potential risks? 14 A. And Mr. Forsyth was a very conscientious 15 patient. 16 Q. Now, at the time you prescribed the Prozac for 17 Mr. Forsyth, you, because of your training and your 18 own clinical experience, had in mind that because he 19 carried the diagnosis of major depression, that he had 20 a risk of becoming suicidal as a result of the 21 disease; isn't that right? 22 A. I think that that risk was very clear, yes, and 23 that depression, being what it was and the story that 24 you've helped us recap here, being what it was, that 25 that risk of suicide was always in the back -- would PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1271 1 always be in the back of my mind. 2 Q. In fact, isn't it so that -- and again, I want 3 to refer to the time frame when you were treating 4 Mr. Forsyth. That when you dealt with and treated 5 with patients with major depression, you assumed that 6 the patients were already suicidal; isn't that right? 7 A. I would always be concerned that a patient was 8 already suicidal upon meeting someone with a major 9 depressive disorder. 10 Q. And again, back at the time you were treating 11 Mr. Forsyth, you would also have in mind that a 12 patient with major depression might become suicidal 13 even though they were receiving treatment for their 14 depression; is that correct? 15 A. Absolutely. And again, Mr. Forsyth was a very 16 conscientious patient. 17 Q. And at the -- during the same time frame; that 18 is, the time that you were treating with Mr. Forsyth, 19 you also had in mind that even in patients who were 20 being treated with antidepressant medication, suicidal 21 thinking or suicidality might become worse in such 22 patients? 23 A. When I spoke with Mr. Forsyth on the phone, 24 that was reviewed as one of the indications for 25 hospitalization, and, in fact, my sense at the time of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1272 1 his not needing to be hospitalized at that time was 2 because he had been doing so much better and that had 3 not been a concern. Even that he himself, at the time 4 of the telephone conversation, did not feel that that 5 was a concern. He was confused by the need for 6 hospitalization. He didn't understand it. 7 Q. I was really trying to get at the general 8 concept. During the time that you were treating with 9 Mr. Forsyth, that in your dealings with patients who 10 had major depression, that one of the things you kept 11 in mind was the fact that even though antidepressant 12 treatment was being provided for those patients, it 13 was possible that suicidality could appear or could 14 worsen? 15 A. That is part of the patient training, that's 16 correct. A part of what you do to help a person 17 through this illness is to prepare them for changes 18 that may occur at any time and to be ready at a 19 moment's notice to call you and to chase you down 20 should there be something that occurs that they don't 21 understand. 22 Q. And so now taking it specifically to 23 Mr. Forsyth, when you prescribed, well, Pamelor for 24 him and when you prescribed Prozac for him, one of the 25 things you had in mind was that even though PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1273 1 antidepressant treatment was being provided, it was a 2 possibility that he might become suicidal or that 3 suicidality might become worse? 4 A. That is correct. That's how we are trained and 5 that's how I function. 6 THE COURT: It's 10:30. Let's take a 15-minute 7 break. Please be back at a quarter to eleven. 8 (Whereupon, a recess was taken at 10:30 a.m.) 9 THE COURT: Please proceed, Mr. See. 10 MR. SEE: Thank you, Doctor. I pass the 11 witness. 12 REDIRECT EXAMINATION 13 BY MR. VICKERY: 14 Q. How about the risk of homicide, Dr. Roberts, 15 was that ever in the back of your mind? 16 A. No, that was not specifically in the back of my 17 mind, although I do consider it with each patient that 18 comes to see me. 19 Q. I mean, depressed people are at risk for 20 suicide, killing themselves, because they just feel so 21 down, right? 22 MR. SEE: Your Honor, I object to the leading 23 nature of the question. It's on redirect examination. 24 THE COURT: Sustained. 25 Q (By Mr. Vickery) Are depressed people, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1274 1 because they feel low self-worth, at a risk for 2 killing themselves? 3 A. I would have to condition my response. I'm not 4 certain that we are wholly aware of the reasons that 5 people kill themselves. Low self-esteem is certainly 6 one of the factors that may play into it, and the 7 reality is that depression accompanies suicide, but I 8 cannot tell you precisely, in each case, how come. 9 Q. Right. And I understand that's a whole other 10 field of expertise called suicidology, is it not? 11 A. Right. 12 Q. But just in your clinical practice, when you 13 have people that are depressed, as your diagnosis for 14 Mr. Forsyth was, are you particularly concerned about 15 them killing other people? 16 MR. SEE: Objection, asked and answered. 17 THE COURT: I'll allow the question again. 18 THE WITNESS: Would you try to repeat that 19 question, please? I got distracted by the other 20 conversation. 21 Q (By Mr. Vickery) Sure. When you are treating 22 a depressed person like Bill Forsyth, are you 23 particularly worried that that person is going to kill 24 someone else? 25 A. I ask that question of the patient and train PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1275 1 the patient to be willing to talk with me openly about 2 things and bring it up if they become a problem. If 3 it appeared as though that were an issue, I would have 4 brought it up to Mr. Forsyth. I did not. 5 Q. Right. And, of course, this has been covered 6 already, but, in fact, both in your notes and in your 7 deposition testimony, you never found any -- any 8 particular risk of Mr. Forsyth for either suicide or 9 homicide, did you? 10 A. On the day of the hospitalization, there was 11 the indication that Mr. Forsyth had indicated he was 12 suicidal. I have in a page of the notes that was not 13 covered, and I also have in my recollection, that he 14 himself disagreed with that impression. He did not 15 regard himself as suicidal. 16 Q. Right. 17 A. So I'm -- 18 Q. I'm just talking about your evaluation of him. 19 A. I'm telling you my evaluation of him. I'm 20 telling you that in examination of him, in my 21 examination of him on the phone, which is to ask 22 questions of him on the phone, he indicated to me that 23 he did not understand why he had to go into the 24 hospital. He did not feel suicidal. 25 Q. Okay. So the only discussion you had with him PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1276 1 about it at that point in time was him saying, I'm not 2 suicidal? 3 A. That's correct. He felt as though -- that what 4 he had said had been misinterpreted by his son. 5 Q. All right. Now, you said several times that he 6 was a conscientious patient. What do you mean by 7 that? 8 A. I mean that he was calling me sometimes two and 9 three times a day. Some patients do get excessive 10 with their follow through of my training. I train 11 them to call me and report. He kept a journal and he 12 also called me frequently to report his progress. It 13 was a very nice part about having him as a patient. I 14 felt very confident that I would hear from him. 15 Q. So he was the kind of guy that took your 16 training to heart? 17 A. That's correct. 18 Q. Can we, therefore, assume that had you been 19 provided with any information by Eli Lilly concerning 20 Prozac causing some people to behave in violent or 21 suicidal ways, that you would have told him and you 22 would have expected him to take heed? 23 A. Even today I know that information. I still 24 train my patients diligently. You have said it in a 25 manner that gives me pause. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1277 1 Q. Well, let me rephrase it then. One of the 2 documents that we have seen already, the jury has seen 3 on the screen already and it's in evidence, is an 4 internal document from Eli Lilly, indicating that 5 according to the state of the knowledge in 1985, there 6 was a 5.6 times greater risk of a suicide attempt on 7 Prozac than on other antidepressants. 8 Now, let me break it down in a couple of 9 questions. If they had shared this state of the 10 knowledge with you, the physician, prior to 11 February 22nd of 1993, would you have included that 12 information in your training of this patient? 13 A. Did you say a five times greater risk? I'm not 14 familiar with that paper. 15 Q. I know you're not. That's one of the reasons 16 I'm complaining about it, but had that been told to 17 you -- 18 MR. SEE: Your Honor. Mr. Vickery, if you 19 wouldn't mind. I object to the question and the 20 comments of counsel and move that they be stricken. 21 THE COURT: Sustained. The comment by counsel 22 will be stricken. 23 Q (By Mr. Vickery) Had you been told this, had 24 you been told what -- the jury will see, okay? Just 25 take it on faith from me they'll see it. It's in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1278 1 evidence. That Eli Lilly itself, in 1985, it said 2 there's a 5.6 times greater risk of suicide attempts 3 on Prozac than with other antidepressants. Would you 4 have included that information in your training of 5 Bill Forsyth? 6 A. This is new information to me, Mr. Vickery, and 7 so if I have that statistic before me, if this is a 8 prospective study that has been -- that has been 9 provided us, and if you are to now provide me with 10 such a prospective study that would document a five 11 times greater risk of suicide following the beginning 12 of Prozac, would I change my instruction? Would I 13 tell my patient that there is a five times greater 14 risk that you will kill yourself on this medicine? I 15 would change my prescribing practice with that 16 information, if that information can be proven to be 17 real. 18 Q. In other words, you wouldn't give it to him? 19 A. I have patients that have done so well on 20 Prozac, that I am not -- I am not opposed to utilizing 21 Prozac. I've used it successfully. I have also 22 experience with patients that have committed suicide 23 on other medicines as well. The positive benefits 24 versus risk ratio, in my experience with this 25 medicine, would not stop me from prescribing Prozac. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1279 1 Q. Even if they told you it was 5.6 times greater 2 chance to commit suicide on it than with other 3 antidepressants? 4 A. If I had a patient that I could trust and could 5 work with and could teach and could be responsive to 6 me, I can see, as some have, requested that they try 7 that medicine, or that their family groups have 8 benefited from that medicine, therefore, there's a 9 genetic link, as an example, that would give us 10 evidence that that particular chemistry could be life 11 saving for that individual. 12 I think that the route I would take, should I 13 fail to receive information that would counter this, 14 is that the route that I might take would be to change 15 the frequency with which I would use Prozac, but it 16 would not stop me from utilizing this medicine. 17 Q. Well, for those that you -- where you decided 18 to use it, let's just assume that you decided to use 19 it with Mr. Forsyth, but you had that information, 20 would you have shared that information with the 21 patient as part of your training process? 22 A. I need to see the data, Mr. Vickery. You know, 23 you're telling me something that's brand new for me 24 and I have not received it from -- I mean, it's like 25 the drug rep comes into me, Mr. Vickery, and sits down PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1280 1 and tells me a story, and I say, nice story, but 2 you're a drug rep. I don't wish to call you a lawyer, 3 but the point is that I'm receiving this information 4 without having studied it under any context or 5 received it under the scrutiny of my peers. 6 I'm receiving this information for the first 7 time and you're asking me questions to make 8 interpretations without having developed a solid 9 understanding or education from my peers, whom I 10 respect in this industry. It is premature for a 11 clinician to have to respond to that information. 12 I will study that information and I will be 13 guarded about my use of the medicine as a result of 14 hearing that information, but there is no -- I've got 15 too many years background in having studied 16 extensively to want to latch onto one piece of 17 information and try to respond in a manner 18 professionally that would reflect my future 19 prescribing practice. I need more information. I 20 need to see the data. I need to see the research. 21 Q. Okay. Excuse me, I must not have done a good 22 job. First of all, it doesn't offend me for you to 23 call me a lawyer. I'm very proud to be a lawyer. 24 A. Very good, sir. I'm saying, drug reps are very 25 proud of being drug reps. They have a job to do. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1281 1 Q. Fine. 2 A. I'm explaining my position as a clinician, as I 3 might explain it to a drug rep, as he comes in and 4 sits down with me. I need to see the information. 5 Q. Let me be very specific about it. The question 6 is not whether when you get this information from me, 7 a lawyer. The question is if you got this information 8 from that drug rep that was calling on you on behalf 9 of Eli Lilly, if they said to you, here is our 10 internal study, the state of the knowledge worldwide, 11 as of March 29, 1985, and what it shows is there's a 12 5.6 times greater risk, greater risk of suicide 13 attempts on this antidepressant than others, if it 14 comes to you from them, instead of me, would it affect 15 the way that you treated Bill Forsyth? 16 A. It would not have affected the way that I 17 treated Bill Forsyth. It would affect me today. The 18 reason is is because I have experienced Bill Forsyth. 19 Now, Bill Forsyth, in my opinion, was not suicidal at 20 the time that he went into the hospital by his 21 statement. 22 By the information on the page that was not 23 reviewed, that I have to remind me of what transpired 24 following hospitalization, he was not suicidal at the 25 time of his discharge. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1282 1 Q. Right. That's all the information you were 2 given by the folks at Castle that's on that page, 3 right? 4 A. That's correct. That is my follow through 5 about my patient about whom I cared tremendously. 6 Q. I'm sure you did. Dr. Neal has already 7 testified, okay, so I'm not going to ask you about 8 what you were told by Castle. He's already been here. 9 The jury has already heard him. 10 Let me ask you this: Mr. See asked you about 11 the package insert and did you study it several times 12 and all of that, is there contained within the package 13 insert a section called "Information For Patients"? 14 A. I don't have a package insert here and my 15 memory is not that good. 16 Q. Okay. Well, I want to try to get you out of 17 here, so will you take my word for it that there's 18 such a section? 19 A. Sure. 20 Q. And do you typically, as part of your training 21 process, share with your patients the information that 22 Lilly has put in its package insert to be shared with 23 those patients? 24 A. I -- unfortunately, I suppose that this may 25 sound strange, but usually not. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1283 1 Q. Usually not. 2 A. My training is not off the package insert. My 3 training is a person-to-person training that has to do 4 with me, as a clinician, teaching my patients things 5 that I believe to be of value to them, so that they 6 may be able to pass through their experience of mental 7 anguish successfully. 8 Q. Do you train them about the warnings or 9 contraindications or serious side effects? 10 A. Yes. 11 Q. Okay. 12 A. The reason that it would not change my 13 prescribing practices is that when you say 5.6 times, 14 we're talking about an incidence of -- we're talking 15 about an incidence of reaction that is not very common 16 by statistics, by my study, and we would just need to 17 be able to get me the information that would help me 18 review what kind of incidence there is, and so that's 19 why I'm having trouble answering that question. 20 Q. Dr. Roberts, is it important, as you train 21 people, for them to know what kind of side effects 22 that can occur, because them having the foreknowledge 23 helps them to deal with them better? Is that the 24 reason you do it? 25 A. The foreknowledge, but also the presence of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1284 1 mind to be in touch with me should something change. 2 Q. Sure. 3 A. And Mr. Forsyth was trained specifically, and 4 this is what challenges me the most with this case. 5 He was in touch with me two and three times a day. He 6 was trained specifically to be in touch with me. 7 Q. Right. 8 A. Now, we had contact. This is not a patient 9 with whom I had a difficult time making contact. 10 Something happened that I don't understand. Something 11 happened that's hidden here that I don't understand 12 fully. He did not contact me. Yet, Dr. Neal reported 13 to me that he had an excellent time in the hospital. 14 He did well daily. He proceeded effectively 15 throughout that hospitalization. This is not someone 16 who's headed for suicide. This is not the story of 17 someone who's going to commit suicide. 18 Q. Assuming, of course, that Dr. Neal was 19 providing you with accurate information? 20 A. Well, if Dr. Neal and Cynthia Hopley of the 21 Castle Medical Center reported inaccurately to me, 22 then my impression would be incorrect. I have no 23 reason to mistrust what they've said. 24 Q. Just a few more questions to follow up on 25 things that Mr. See mentioned. Earlier on direct you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1285 1 said that Mr. Forsyth had something you have come to 2 call the Prozac miracle on day two, February 23rd, 3 200 percent better. Then Mr. See asked you about the 4 placebo effect. Now, based on your prior experience 5 with this drug and your experience with this patient, 6 do you believe he had a placebo effect, or do you 7 stick to your original testimony that he had a Prozac 8 miracle? 9 A. My experience with Prozac to date has met Bill 10 Forsyth's response to Prozac 25 times. 11 Q. Okay. 12 A. Twenty-five to thirty times, an immediate, 13 beneficial response that people would celebrate and 14 regard as life saving. 15 Q. And did you tell him when he reported that 16 Prozac miracle that he could thank Prozac? In other 17 words, in any way did you communicate to him that, you 18 know, what's happening to you is because of this drug? 19 A. No, I don't believe that that's what I said. I 20 would have continued, I think, in the tenor of 21 attempting to educate the patient, attempting to 22 continue to encourage and thank him for reporting to 23 me. I'm sure good to hear from you. Way to go. 24 This is another reason why the telephone call 25 the next day was so perplexing for me. The one case PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1286 1 that I had before this, where there was an akathisia 2 in a case. I had one patient who experienced a Prozac 3 akathisia. The next day they reported to me 4 dutifully, and threw the pills in my face. The 5 response was dramatic and powerful and it impressed 6 them and they knew what had happened to them. They 7 had been trained properly and they reported it to me, 8 graphically. They did not like the experience 9 whatsoever. 10 This is different. This has a different 11 character. He reported to me about everything that 12 was going on. I would have anticipated that he would 13 have reported to me, he would have reported to his 14 doctors, he would have reported to someone that that 15 reaction occurred. 16 Q. Well, you had a report the very next day, 17 didn't you, February 24th, that he wanted to go to the 18 hospital? 19 A. Bill Forsyth did not want to go the hospital. 20 His son wanted him to go to the hospital. 21 Q. I see. But you talked to him before you made 22 the arrangements for him to get in Castle, did you 23 not? 24 A. That's correct, and he was confused about 25 wanting to go to the hospital. He did not think that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1287 1 he needed the hospital, and the report from Dr. Neal 2 later suggested -- or I should say, I'm sorry, the 3 report from Cynthia Hopley that it was a passing or 4 fleeting thought is how he reported it. 5 Q. Okay. Dr. Roberts, Mr. See mentioned Trazodone 6 and Inderal. Did you give those drugs to ward off 7 potential side effects from Prozac? 8 A. No. 9 Q. Okay. Now, you mentioned there was one page 10 that you skipped over. It's the second page of your 11 notes on February the 9th. Would you look at them, 12 please. 13 A. That's not the page that I was referring to. 14 MR. SEE: What page number is that, please? 15 MR. VICKERY: It's Page 18 of the Bates 16 numbered pages. 17 Q. Do yours have the Bates numbers on the bottom? 18 A. No. That's all right. I've got February 9th. 19 Q. Okay. Look at the second page and just tell us 20 there whether in the middle of that page it reflects 21 that he was attempting to loosen up on his need for 22 control? 23 A. That's correct. 24 Q. Thank you. Now, the scary-movie feeling, is 25 that your words or is that Bill Forsyth's words? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1288 1 A. Let's see. This February 9th was while he was 2 on Pamelor. It gave us hope that perhaps there was 3 some benefit from that drug and at the same time that 4 was in the middle of what we were calling the 5 exploration of his feelings, and it did look as though 6 he was making some kind of progress. 7 On that page there's the indication of an 8 ongoing teaching that describes how we're using the 9 medicine and how we're hoping to be able to make gain. 10 Q. Dr. Roberts, just one or two more. Did you 11 ever talk to Dr. Hawley? 12 A. No. I don't think so. 13 Q. Do you know who Dr. Hawley is? 14 A. Not right offhand. 15 Q. He was the GP or internist, I'm not sure 16 exactly what his specialty is, on the Mainland, that 17 had first prescribed Xanax for Bill Forsyth. You 18 understood that when he came to you on December the 19 16th, that he had had Xanax for anxiety before, didn't 20 you? 21 A. Right. 22 Q. Is that one of the reasons you continued that 23 medication? 24 A. That would usually be the reason that I would 25 continue that medicine. I don't usually start with PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1289 1 Xanax. That's not my first line of medicine. 2 MR. VICKERY: Your Honor, I want to offer 3 Exhibit 1011, the eight-and-a-half-by-eleven size. It 4 is an excerpt from Dr. Hawley's records and it has the 5 typed version of the handwritten scroll. 6 MR. SEE: Your Honor, there's no objection if 7 the records themselves come in. 8 MR. VICKERY: The records are already in, but 9 they're hard to read and that's the reason why I was 10 offering this version, Your Honor. 11 THE COURT: Has Mr. See seen it? 12 MR. VICKERY: Oh, yes. He prepared it. It's 13 one of these big blowups like we've seen, but I'm 14 offering the shorter version for the jury so they can 15 read it because the handwriting is hard to read. 16 MR. SEE: I have no objection. 17 THE COURT: Very well. 18 Q (By Mr. Vickery) The reason I offer that with 19 you on the stand, Dr. Roberts, is I wanted to ask you 20 about a couple things that are in his records, because 21 Dr. Hawley was having continuing conversations with 22 Mr. Forsyth while he was under your treatment. 23 A. Well, that would be interesting to me. 24 Q. But before your treatment on October 22nd, he 25 is prescribed Xanax, okay? October 22nd, 1992. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1290 1 A. All right. 2 Q. Now, I want you to assume with me that at this 3 point in time, he is in therapy, in marital therapy, 4 with Dr. Brady in Los Angeles, and his wife is about 5 to join him, but has not yet joined him in that 6 therapy. So they've been separated. They're in 7 therapy and she's coming. Is there anything 8 surprising, at that point in time, about a man wanting 9 a little antianxiety medicine? 10 A. Are you asking me? 11 Q. Yes, sir. 12 MR. SEE: Your Honor, I object. It calls for 13 speculation. There's no foundation for the question. 14 MR. VICKERY: Your Honor, if this gentleman 15 can't answer it, I don't know what person could. He 16 was his psychiatrist for several months. 17 THE COURT: I'll allow the question. 18 THE WITNESS: May I repeat the question to you 19 as I've heard it? 20 Q (By Mr. Vickery) Right. 21 A. We're in a situation where he is receiving a 22 form of psychotherapy from his general practice 23 physician, a Dr. Hawley. 24 Q. He's actually in psychotherapy with Tom Brady, 25 a psychologist, but he goes to Dr. Hawley, his general PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1291 1 practice physician and gets a prescription for Xanax 2 one week before his wife joins him in joint therapy. 3 So my question is, given that scenario, given where he 4 was emotionally, geographically, therapeutically, is 5 it any surprise that he would have gotten some Xanax? 6 MR. SEE: Your Honor, I also object that 7 there's no foundation in that Dr. Roberts was not 8 treating Mr. Forsyth at this time, so it really calls 9 for -- 10 THE COURT: Dr. Roberts wasn't or Dr. Hawley 11 wasn't? 12 MR. SEE: Dr. Roberts was not treating 13 Mr. Forsyth at this time. It was before Mr. Forsyth 14 ever came to see Dr. Roberts, so it calls for an 15 expert opinion as an improper hypothetical. 16 THE COURT: I'll allow the question. 17 THE WITNESS: You have presented an image to me 18 of the gentleman that I saw, Mr. Forsyth, two months 19 before I met him receiving therapy from a 20 psychologist, who is not allowed to prescribe 21 medicine, who apparently requested, it would sound to 22 me -- here is the speculation. I'm forming my 23 speculative response. 24 Q (By Mr. Vickery) Well, let me just read to 25 you because your speculation is good. "10/22/92, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1292 1 phone conversation with patient. Patient had anxiety 2 attack earlier today. He talked to his psychologist 3 today, RX, Xanax, 0.25." 4 A. It would seem to me that the doctor himself 5 received the direction through Mr. Forsyth, which is 6 the usual manner that this is done. The psychologist 7 would direct the patient to go to their primary care 8 doctor and request an antianxiety medicine. This is a 9 method by which doctors who are not given the 10 privilege of prescribing, can then direct the 11 psychopharmacology. 12 Q. Now, did you ever tell Bill Forsyth he was 13 hooked on Xanax? 14 A. I would not deny that I might have. 15 Q. Okay. 16 A. I might have. I mean, that's part of patient 17 training. You say it in a manner that sounds pretty 18 negative. To be addicted to something is not 19 negative. If the doctor fails to instruct the patient 20 who's been taking Xanax for two months -- and 21 benzodiazepines are addictive at two months, at 60 22 days. If you fail to instruct your patient about 23 their addictive nature and they discontinue that 24 medicine abruptly, they would suffer a withdrawal 25 syndrome that would be unfortunate, for lack of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1293 1 information, so that is important information. I 2 hoped I did that. 3 Q. Okay. Well, according to Dr. Hawley's notes, 4 you did. I want to take you to February 23, because 5 this is the date that he calls you with the Prozac 6 miracle report, 200 percent better. 7 A. Say that again now. Which day are you 8 directing me to? 9 Q. February 23, 1993, the day after you gave him 10 Prozac. 11 A. Very good. 12 Q. Okay. So we're very clear on that, your notes 13 and your testimony have all been that he calls with 14 this glowing report that day. 15 A. That's not unfamiliar to me. 16 Q. All right. My question is this: On that same 17 day, apparently he had a conversation with Dr. Hawley 18 in California, and his notes say, "Patient depressed." 19 Can you offer us any insight or help to understand why 20 the same man on the same day would talk to two 21 different doctors and tell one, I'm 200 percent 22 better, and the other I'm depressed? 23 A. Um-hum, I can. What the medicine is doing for 24 us is it's providing us with a form of protection from 25 the intensity of the impact that emotion has upon the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1294 1 system. I personally believe that the paper needs to 2 be written. I'm writing the paper that defines the 3 SSRIs as emotional morphine. 4 Q. What do you mean by "emotional morphine," 5 Dr. Roberts? 6 A. What we're seeing is a partial modification of 7 emotional impact upon a person's -- upon a person's 8 reactions, upon a person's behavior, and upon their 9 perception of what's happening to them. So a 10 successful treatment nowadays, to be successfully 11 treated with an SSRI, with Prozac or its cousins, is 12 to have a 50 percent symptom reduction. So if half of 13 your symptoms disappear, you still have depression. 14 You're still depressed. You still have 50 percent of 15 what you're being treated for, and the patient needs 16 to be aware of that and so too does the doctor, by the 17 way. 18 And this is where I take issue with this 19 sequence of events, because if what I've heard about 20 this case is true, then it was not discussed with me. 21 MR. VICKERY: Thank you, Dr. Roberts. I pass 22 the witness. 23 24 RECROSS-EXAMINATION 25 BY MR. SEE: PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1295 1 Q. Dr. Roberts, you gave some testimony earlier 2 about the kind of scientific information that you rely 3 upon when you make prescribing decisions for 4 medicines. Do you recall that generally? 5 A. Yes. 6 Q. And is it correct that the kind of scientific 7 information that you rely upon to make prescribing 8 decisions for medicines are the results of published 9 scientifically-valid controlled clinical trials? 10 A. That is correct. And that's how come I was 11 having trouble with that series of questions, because 12 I have learned -- I was taught, as I mentioned the 13 last time that I was here, I was taught to be very 14 disciplined about my source of information. 15 Q. Now, Mr. Vickery asked you whether you would 16 change your prescribing practice for Prozac if you 17 learned that Prozac created a 5.6 times greater risk 18 for suicide as compared to other medications. Do you 19 recall that question he asked you? 20 A. Yes, I do. 21 Q. And would it be correct, Doctor, that you would 22 make that change if Mr. Vickery's statement to you 23 reflected scientifically-valid results from controlled 24 clinical trials? 25 A. I'm still integrating this information. You PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1296 1 see, I am a clinician and I'm just another human being 2 here trying to do my job right now. 3 Q. Maybe I'll ask you a simpler question. 4 A. All right. 5 Q. Maybe it will be simpler. Would it be correct 6 that you would have changed your prescribing practice 7 back in '93 about Prozac, if that 5.6 times 8 information that Mr. Vickery related to you was 9 scientifically valid? 10 A. If I had received, through the journals, if I 11 had read an article from a respected journal, 12 published by a respected journal and authored by a 13 respected author, in other words, have passed through 14 the hands of our educational institutions, then I 15 would hope that the article would also include within 16 it interpretation of the mentionings of these 17 findings, self-examination of possible errors that may 18 have been made in their discovery, the implications 19 that -- the implications to our profession. 20 I mean, this is information that we would want 21 to have if it's true. If it is happening -- if what 22 this is suggesting is happening, then we would want to 23 study it more closely and see this information. 24 Please make it available to me. I need that 25 information. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1297 1 I'm integrating that information as I sit here 2 and I'm sorry that you guys have to watch me suffer 3 for the words, because this is a critical time. I 4 want to be able to reflect accurately what the 5 clinician would do with this information. I don't 6 want to go off and say something that later on I want 7 to change. So I'm very careful to select my words. 8 Q. Understood. What I'm trying to ask you is your 9 reliance upon the kind of information Mr. Vickery 10 proposed to you would require that it be true and that 11 it be based upon scientifically-valid methodology, is 12 that -- 13 A. And confirmed by respected members in our 14 community, yes. 15 Q. I just want to ask you one follow-up question 16 on reference to SSRI antidepressants as emotional 17 morphine. Do you recall that statement? 18 A. Very clearly. 19 Q. Is that a shorthand way or a label that you 20 have put on the ability of this class of 21 antidepressants to provide relief from some of the 22 very uncomfortable symptoms of major depression? 23 A. And mechanism of relief and also it speaks to 24 its mechanism of action. 25 Q. And if I'm understanding you correctly, you're PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1298 1 not describing that in a negative way, correct? 2 A. Morphine is not a negative substance, sir, for 3 someone that's wounded in battle. 4 Q. I just want to make sure you don't have a 5 negative connotation label at all applying it to the 6 SSRI antidepressants, correct? 7 A. Correct. To my read, Mr. Forsyth was wounded 8 in battle and he received an emotional morphine that 9 provided him with some relief. I understand you're 10 arguing whether or not this could have prompted a 11 suicide. I'm not the expert here. What you are 12 asking me is about an area of particular interest and 13 my particular interest is that what it has done for 14 people is it provided Mr. Forsyth a very clear 15 capacity to describe what he was experiencing without 16 being interrupted by overwhelming emotions that 17 distracted him and made him unable to function. 18 Q. So in that sense, the Prozac was beneficial for 19 Mr. Forsyth, in your view, as you observed him? 20 A. It appeared. 21 MR. SEE: Thank you. That's all. 22 MR. VICKERY: May this witness be excused? 23 THE COURT: You're excused. 24 THE WITNESS: Thank you. 25 MR. VICKERY: We call Dr. Ron Shlensky. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1299 1 MR. SEE: Your Honor, may we approach side bar 2 before Dr. Shlensky? 3 THE COURT: Yes. 4 (Whereupon, the following proceedings were had 5 at side bar out of the hearing of the jury.) 6 THE COURT: I thought you were going to call 7 another witness at this point. 8 MR. VICKERY: I'm trying to accommodate 9 Dr. Shlensky's need to be out of here tonight. 10 Particularly after our scheduling discussion earlier, 11 I wanted to get him on and off. It's important to try 12 to get him off today, if we can. If I start someone 13 else, I'll never do that. 14 THE COURT: We should have taken this up at 15 break. 16 MR. VICKERY: Your Honor, I thought I could lay 17 a foundation to qualify him as an expert now and then 18 that would take us to the lunch hour and then we could 19 talk about it. I'm not going to ask him any opinions. 20 THE COURT: Twenty minutes, do we have time to 21 do that? 22 MR. VICKERY: It's almost quarter of. I think 23 by the time I lay the foundation for his 24 qualifications and tender testimony, we will be right 25 at the lunch hour. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1300 1 THE COURT: All right. 2 (Whereupon, the following proceedings were had 3 in open court in the presence of the jury.) 4 THE COURT: Please proceed, Mr. Vickery. 5 MR. VICKERY: Thank you, Your Honor. 6 THE CLERK: Please raise your right hand. 7 RONALD SHLENSKY, M.D., 8 called as a witness on behalf of the Plaintiffs, after 9 having been first duly sworn to tell the truth, the 10 whole truth, and nothing but the truth, was examined 11 and testified as follows: 12 THE CLERK: Please be seated. Please state 13 your name and spell your last name. 14 THE WITNESS: My name is Ronald Shlensky, 15 S-H-L-E-N-K-S-K-Y. 16 DIRECT EXAMINATION 17 BY MR. VICKERY: 18 Q. Good morning, Dr. Shlensky. 19 A. Good morning. 20 Q. Tell us a little bit about yourself. How old 21 of a gentleman are you? 22 A. I'm 64. 23 Q. Okay, sir. And where did you grow up? 24 A. I grew up in the Midwest. 25 Q. Tell us about your educational background, if PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1301 1 you would. 2 A. Well, I went to -- I'll start with college. I 3 went to Purdue University, and I attended pharmacy 4 school there, actually, for a couple of years and then 5 switched to pre-med. I graduated from Purdue in 1956 6 with a bachelor of science in chemistry. Then I 7 attended medical school at the University of Illinois 8 College of Medicine from 1956 to 1960. I also earned 9 a bachelor of medicine there as well as a medical 10 degree. I then did a year of internship -- 11 Q. Let me stop you. You mentioned pharmacy 12 school. You went to pharmacy school for a while? 13 A. Yeah. 14 Q. Why did you do that? 15 A. I grew up in a drugstore actually. My dad was 16 a druggist, and he wanted me to go to pharmacy school. 17 Q. All right. 18 A. And I did it for a while, but I chose to change 19 over. Although, I'm interested in pharmacy and I've 20 actually worked as a pharmacist for many years. 21 Then I did an internship at the District of 22 Columbia General Hospital under the auspices of George 23 Washington University. That was for a year. Then I 24 started my psychiatric training. I chose to 25 specialize in psychiatry after getting my medical PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1302 1 degree and my license, and I went to Northwestern -- 2 the Northwestern Psychiatric Program in Chicago for a 3 year. I then transferred to the University of 4 California, Langley Porter Neuropsychiatric Institute 5 in San Francisco, and I completed another two years 6 there. Then I was in the Army for a couple of years. 7 Q. Let me stop you. Now, how many years is that, 8 first of all, of medical school? 9 A. Well, it's four years of medical school. 10 Q. Then how many years of psychiatry residency? 11 A. Well, after medical school, there's a year of 12 internship and then there's three years of psychiatry 13 residency. 14 Q. All right. And once you successfully complete 15 that course of study, are you then able to say I'm a 16 psychiatrist? 17 A. Well, at that point, you're what's called a 18 board-eligible psychiatrist. This means that if you 19 choose, you can become board certified. Actually, you 20 have to get a couple years' experience after you 21 complete your training. To be board certified really 22 requires one to take an onerous examination, a tough 23 examine, and then it allows one to do certain things, 24 practice in certain subjects. 25 For example, in order to be on the faculty of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1303 1 Northwestern Medical School, which I was after I got 2 out of the Army, I had to be board certified. So I 3 had to take that certification exam. 4 Q. All right. 5 A. But you don't have to be certified to practice. 6 Q. What years were you in the Army? 7 A. I was in the Army from '64 to '66. 8 Q. And did you do psychiatry when you were in the 9 Army? 10 A. Yes, I did. 11 Q. What kind of things did you do there? 12 A. Well, I took care of -- I practiced psychiatry. 13 I took care of emotional and mentally ill patients and 14 practiced general psychiatry, and I did general 15 medicine as well. I had to do on call in the -- I 16 forget what they call it in the military, but it was 17 like an emergency room, and I also did some legal 18 stuff in that it just so happened that I was 19 designated as the person in that theater of action, so 20 to speak, to be available for any legal stuff that 21 came up. It just was a coincidence. 22 Q. What kind of legal stuff would come up? 23 A. Well, examining patients who were charged with 24 a crime or seeing people who had committed crimes or 25 had perpetrated illegal acts, who were suicidal and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1304 1 who there were questions as to whether they should be 2 out of the service. Anything that had a legal 3 dimension. 4 Q. All right. You get out of the service in '66, 5 what do you then do for the next 14 years? 6 A. I was very fortunate. I was invited by the 7 chairman of the department at Northwestern to come and 8 join him in practice and to -- the chairman of the 9 Department of Psychiatry and Neurology at Northwestern 10 to come and join him at practice and to teach at the 11 medical school. 12 Q. Both private practice and teaching? 13 A. Yes, sir. 14 Q. And what was the nature of your private 15 practice for those 14 years? 16 A. Well, I always call it the surgical end of 17 psychiatry. In other words, I was one of the few 18 people there, and I was seeing a lot of emergencies, a 19 lot of acutely ill people. I was doing consultations 20 for all of the other specialists at Northwestern, and 21 I was -- I always had a certain number of people in 22 the hospital, and I had a large outpatient practice 23 and I -- you know, I practiced in a teaching mode, in 24 that I often had students or residents; that is, 25 psychiatry trainees with me when I saw patients and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1305 1 gave courses. 2 Q. Dr. Shlensky, in those years, those 14 years in 3 Chicago, did you continue to have encounters with the 4 legal system and the law? 5 A. Well, I did. I decided when I was -- after I 6 practiced for about ten years, to go to law school. 7 Q. Law school? 8 A. So I -- yes, I'm sorry. 9 Q. Did you go to law school? 10 A. Yes, I did. I was within a block of about five 11 law schools, and I found a program at Loyola that was 12 three-quarter time, that allowed me to continue 13 practicing and go to law school. 14 Q. Did you have it in your mind to become a 15 lawyer? 16 A. No, I -- 17 Q. Weren't that crazy, huh? 18 A. Well, in retrospect, kind of interesting, I 19 did. I was just interested. I always wanted to go to 20 law school, and so I had the opportunity, and 21 thereafter, to answer your question, I did become a 22 certified attorney. I took the bar and so on. I 23 never practiced. I never intended to practice law, 24 but as a result of that, I got a certain amount of 25 publicity by Northwestern and because of that, I was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1306 1 called upon thereafter to be involved -- well, I was 2 also appointed by the governor to do certain things 3 that involved psychiatry and law, and I was on the 4 committee to revise the mental health system in 5 Illinois, and I paneled the study of the insanity 6 defense, I was the driver's license psychiatrist, and 7 I got involved in -- and attorneys in town would then 8 call me. I also published some papers on forensic 9 psychiatry. 10 Q. I want to talk -- excuse me for interrupting. 11 I want to talk about forensic psychiatry in a minute, 12 but tell us, if you would, at the time you graduated 13 from law school, how many psychiatrists were there in 14 the United States who also held law degrees? 15 A. I was one of twelve at that time. 16 Q. One of twelve. Now, you started to tell us 17 something about forensic psychiatry. Could you just 18 help us out and tell us what that is, what is forensic 19 psychiatry? 20 A. Well, it's a speciality of psychiatry, like 21 child psychiatry, a subspecialty, let's say. 22 Psychiatry is a specialty of medicine and forensic 23 psychiatry is a subspecialty of psychiatry. It 24 involves the interface or the interconnection between 25 law and psychiatry, and so such things as the matter PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1307 1 here at hand, the perpetration of violence by certain 2 individuals, criminal acts. There are numerous areas, 3 suicidal circumstances, numerous areas in which the 4 law and psychiatry overlap and this subspecialty is 5 addressed to that area. 6 Actually, at that time, there was no 7 subspecialty and I was part of a gradual development 8 in that subspecialty. 9 Q. Let's talk about that. In that subspecialty, 10 was there, part of the time that you became real 11 actively involved in it, a journal of forensic 12 psychiatry? 13 A. Well, there was one journal. There was an 14 organization called the American Academy of Psychiatry 15 and Law, which I joined, and they published something 16 called the Bulletin of the American Academy of 17 Psychiatry and Law, so there was that journal. 18 Q. Was that a peer-reviewed journal? 19 A. Yes, I would say it was a good journal. 20 Q. Did you start another one? 21 A. I did. I started the American Journal of 22 Forensic Psychiatry. I felt that there was need for 23 additional venue, so to speak, or chances for people 24 to share information as the field was evolving at that 25 point. So I started another one while I was at PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1308 1 Northwestern. Northwestern was good enough to publish 2 it for me in their basement, and it still exists. 3 Q. So, Dr. Shlensky, were you the founding editor 4 of that journal? 5 A. I did it myself. 6 Q. And did you, in addition to soliciting articles 7 from other people, write articles for that journal 8 yourself? 9 A. Yes. I still periodically -- I review articles 10 for that journal and I review papers that -- we 11 started -- out of that journal evolved the American 12 College of Forensic Psychology, which is the second 13 forensic psychiatry organization in the country, and I 14 review articles for that, for the papers that are 15 being delivered. I deliver papers. I write articles. 16 I'm still interested, very interested. 17 Q. Okay. Now, 1980 to the present, that's nearly 18 20 years, what did you do when you left Northwestern 19 University in Chicago? 20 A. Well, I went out to Santa Barbara, California 21 and I became the first and only psychiatrist at what's 22 called the Sansome Medical Clinic there. It was more 23 or less a Mayo of the West. It was a place where 24 people came that were not satisfied with their 25 diagnosis or treatment or whatever and stayed for a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1309 1 week, or something like that, and had comprehensive 2 evaluations and treatment. 3 So I was the -- I had 80 partners of a variety 4 of all the medical specialties, and I was the 5 psychiatrist for the group, and thus, I had a very 6 similar practice to that -- to the one that I had in 7 Chicago because I was very busy. I had -- my mornings 8 were in the hospital, and my afternoons were in the 9 office doing consultations and treatment, so that's 10 what I did while I was there. 11 Q. How long were you affiliated with that group, 12 Dr. Shlensky? 13 A. That was about the next 14 years, until a few 14 years ago. 15 Q. When you changed -- let's see, 14 years would 16 be about 1994, if my math is correct, what did you 17 then change to? 18 A. Well, I then just went on my own. What 19 happened was, the new system in medicine came in and I 20 found that I was spending so much time calling 800 21 numbers getting permission to do this or that, I just 22 felt this -- every doctor will tell you the same 23 thing. We all had to encounter these middle men and 24 we didn't like it, and I was fortunate enough to be 25 able to just go out on my own and give up the hospital PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1310 1 end of practice, so that I wouldn't have to deal with 2 the insurance companies like that. 3 Q. Okay. Dr. Shlensky, through the years, as a 4 result of your interest in forensic psychiatry, have 5 you been called upon from time to time, as we have 6 called upon you in this case, to give your opinions 7 and your testimony in connection with court cases? 8 A. Yes, I have. 9 Q. Give us an idea, approximately, how many times 10 lawyers for one side or the other have called upon 11 you? 12 A. Well, it represents sort of a certain 13 percentage of my practice, 10 to 25 percent of my 14 practice, and it has, particularly since I left Sanson 15 Clinic, it has been more of an element of my practice. 16 When I was there, I really did much less because I was 17 too busy with patient care. So I get called several 18 times a year or something. 19 MR. VICKERY: Very well. Your Honor, at this 20 time, we tender Dr. Shlensky as an expert in the field 21 of psychiatry with a subspecialty in forensic 22 psychiatry. 23 MR. SEE: Your Honor, I have no objection to 24 Dr. Shlensky's qualifications. 25 THE COURT: Very well. The Court so finds that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1311 1 Dr. Shlensky is qualified to testify as an expert in 2 psychiatry and a subset of forensic psychiatry. 3 Let's take a break now. I do want to meet with 4 counsel, but we're going to break until two o'clock. 5 Please be back at two o'clock this afternoon. 6 (Whereupon, the following proceedings were had 7 in open court out of the presence of the jury.) 8 THE COURT: Mr. See. 9 MR. SEE: Your Honor, I have two things. One 10 is we're objecting to Dr. Shlensky testifying on 11 causation on the ground that was stated to the Court 12 earlier; that is, that Dr. Shlensky, in his own sworn 13 testimony, has stated the standard for coming to a 14 causal conclusion, and that is, to show a 15 statistically significant association between the drug 16 and the effect, and having so testified that that is, 17 in fact, the generally accepted standard in the 18 scientific and medical community. 19 Having set that standard for himself, at least 20 as far as I'm aware, Dr. Shlensky has not come forward 21 with any scientific data that shows, in fact, a 22 statistically significant association between Prozac 23 and suicide or Prozac and homicide or Prozac and 24 homicide/suicide. Accordingly, I think under the 25 Daubert case, Dr. Shlensky ought not be able to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1312 1 testify as to causation. 2 That's the one item. The other item, the 3 matter that we just handed up has to do with a motion 4 to strike those items in evidence that deal with 5 labeling, package inserts, warnings, regarding Prozac 6 from foreign countries, and the rationale for the 7 motion is this: Those labels and inserts and warnings 8 about Prozac from foreign countries, the Court, I 9 think earlier had ruled that they would be admitted on 10 the basis of notice to Lilly with respect to that kind 11 of warning. 12 However, we've now heard testimony from both of 13 the doctors who prescribed Prozac for Mr. Forsyth, and 14 there is -- Dr. Roberts gave no testimony about what 15 he would have done or not done had any of the 16 warnings -- any of the different warnings contained in 17 the foreign labels been provided to him at the 18 relevant time. So there's no evidence from 19 Dr. Roberts that any of the foreign labels would have 20 made any difference at all. 21 You look to Dr. Neal, in fact, Dr. Neal 22 testified that Mr. Vickery had, in fact, sent him 23 exhibits from this case and he looked at them and none 24 of them would have made any difference to him. 25 So I would submit that because the only two PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1313 1 actors that are relevant to the question; that is, 2 Dr. Neal and Dr. Roberts, there is no evidence from 3 either one of them that any of the different warnings 4 contained in the foreign package inserts, the foreign 5 labels, would have made any difference. They can't be 6 tied together. So in other words, an argument to the 7 jury that, well, the doctor would have done it 8 differently had he only been shown the German label, 9 that argument only gets to the jury if there's 10 evidence that, in fact, the doctor would have changed 11 his behavior based upon getting the warning on the 12 German label. There is no such evidence in the case. 13 THE COURT: You're now raising the point of the 14 Wolf ruling. 15 MR. SEE: Say? 16 THE COURT: I said you're now raising the point 17 that was made in the ruling in the Wolf case. 18 MR. SEE: Essentially, that's right. There's 19 just no evidence that, you know -- I admit that there 20 may be some other items where Mr. Vickery may argue he 21 should get to the jury on the proximate cause issue, 22 but he can't get there on the basis of any foreign 23 warnings, because none of the doctors gave testimony 24 about them. 25 There was -- none of them were ever put in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1314 1 front of the doctor -- if you had seen this warning 2 from Sweden or words to this effect, would it have 3 made a difference to you? There's no evidence on 4 that. So, therefore, the foreign labels, the foreign 5 warnings, are irrelevant. They can't be relevant 6 because no doctor, that is relevant to this case, 7 relied on them, at least we will and -- I mean, we 8 already have the evidence about what they're going to 9 say and there is no evidence. 10 THE COURT: Thank you. Mr. Vickery. 11 MR. SEE: I have one more, if I might, Your 12 Honor. 13 THE COURT: This is a third point now? 14 THE WITNESS: No, it's a little elaboration on 15 the second point. I'm reminded that the items 16 contained in the foreign labels; that is, you might 17 want to prescribe a sedative, you might want to 18 consider hospitalization, those are the principal 19 distinguishing differences, those things were done in 20 Mr. Forsyth's case anyway, so it wouldn't have made 21 any difference. Thank you. 22 THE COURT: You mean giving the Inderal? 23 MR. SEE: Yes. Mr. Forsyth was prescribed a 24 sleeping medication and he was prescribed Inderal, in 25 any event, by Dr. Roberts and it was continued by PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1315 1 Dr. Neal, so had they been told, you might want to 2 consider a sedative for your patient, it wouldn't have 3 made any difference because they prescribed one 4 anyway. So there can't be proximate cause. 5 THE COURT: Mr. Vickery. 6 MR. VICKERY: Well, Your Honor, let me take the 7 first issue first and that is concerning the Daubert 8 findings or the Daubert issue as raised, yet another 9 time, by Lilly here. I submitted a short response on 10 Friday enclosing the full colloquy from the deposition 11 in which it was discussed with Dr. Shlensky about 12 statistical associations, and I think it is abundantly 13 clear from that, what he was talking about was 14 statistically significant associations of beneficial 15 effects in clinical trials for FDA registration 16 purposes, not of adverse effects, and as the testimony 17 from Dr. Healy has already made abundantly clear, 18 those are two very different things. 19 I think we have, you know, the Ninth Circuit 20 case law of McKindle, we have the recent Kennedy case, 21 and of course, this Court's very thorough opinion on 22 that issue in finding that Dr. Shlensky's testimony 23 met the requirements of Daubert sometime ago. The 24 only thing new that has been raised is, Judge, he said 25 statistically significant. Look, here it is. He said PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1316 1 it, and what I've tried to show the Court is if you 2 look at the context in which he said it, you'll see it 3 certainly is not the kind of thing that would preclude 4 him from testifying. If Mr. See wants to 5 cross-examine him on that, he can. That's that issue. 6 The second issue is a far more -- well, a far 7 more difficult issue, and I haven't had a chance to 8 even read the papers that have been handed to the 9 Court. 10 THE COURT: Fine. I really haven't either, so 11 why don't we meet again at a quarter of two. 12 MR. VICKERY: Very well. 13 THE COURT: Hopefully I'll be available by 14 then, but I do think Mr. See raises some good points 15 as far as what was, in fact, prescribed even if the 16 notice had been there or the warning. 17 MR. VICKERY: Judge, I handled the Wolf case -- 18 THE COURT: Pardon me? 19 MR. VICKERY: I said, I handled the Wolf case, 20 and I'm fully prepared to address that issue with the 21 Court. I just want to read what they said before we 22 do. I'm glad counsel finds that amusing, but I didn't 23 find it amusing at all for those children. 24 THE COURT: What I'm saying is that even if the 25 foreign warning was given, it seemed that they PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1317 1 complied with it. 2 MR. VICKERY: I don't think so. 3 THE COURT: All right. We'll see you at a 4 quarter of two. 5 (Whereupon, a lunch recess was taken at 6 12:05 p.m.) 7 (Whereupon, the following proceedings were had 8 in open court out of the presence of the jury.) 9 THE COURT: Mr. Vickery. 10 MR. VICKERY: May it please the Court, Your 11 Honor, it almost gives me a panic attack to find 12 myself twice in one day in agreement with Mr. See, but 13 as a matter of tactics, rather than what I perceive to 14 be a necessity, I would like to withdraw Exhibits 6, 15 8, 9, 10, 11, 12, and 76. That is all but one of the 16 ones listed in Mr. See's memorandum. Actually, it 17 adds one, number 10, which he pointed out to me over 18 the lunch hour that he had inadvertently omitted from 19 his list. The one that remains is No. 88. It is not 20 a foreign label as such, but a memorandum about the 21 necessity for foreign warnings, and I think that is 22 still very appropriate. 23 I discussed with Mr. See whether or not there 24 had been anything that would necessitate any 25 instruction, because, quite frankly, that would be one PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1318 1 of my concerns. I wouldn't want the Court instructing 2 the jury that we have now withdrawn some exhibits, but 3 I don't believe there has been any mention in front of 4 the jury, in either argument or in evidence, about any 5 of these exhibits, and so I think they can simply be 6 withdrawn, in this phase of the trial, and avoid any 7 potential appellate issue there. 8 I'll tell the Court in all candor, it may well 9 be that one or more of these may become relevant or 10 germane either in this first phase of the trial or in 11 the second, and if, as, and when that happens, my 12 pledge to the Court is to ask to visit with you at 13 side bar before I say something in front of the jury 14 about that. 15 THE COURT: Which is the one you're not 16 withdrawing? 17 MR. VICKERY: Number 88, Your Honor. 18 THE COURT: Eighty-eight? 19 MR. VICKERY: Right. It's a memo about the 20 importance of a warning. In other words, it says, 21 this should become a warning because of acute 22 suicidality. It's not a warning label itself, and so 23 for that reason, that along with all of the other 24 documents the Court has already admitted I think are 25 fair and appropriate and don't fall within the ambit PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1319 1 of what Mr. See has asked the Court to do, but I'm 2 pleased to avoid any kind of potential appellate issue 3 by simply conceding to his request on all these 4 others, but 88, not. 5 THE COURT: Well, does that resolve this 6 situation or what? 7 MR. SEE: Well, 88 is about what was going to 8 or ought to become the German warning. I don't see 9 any difference in that and the others really, so I 10 would propose that 88 be subject to the motion. It 11 talks about -- it is a memo that is talking about 12 Lilly believes that the German regulatory agency may 13 ask to be in the label. It talks about -- the issue 14 about in the absence of sedation and so on, which is 15 under the paragraph marked three. The Court will 16 recall it's that sedation issue that really 17 distinguished the German label from the U.S. label. 18 THE COURT: This is a memo from somebody named 19 Bouchy, Claude? 20 MR. SEE: Yes, Claude Bouchy. It's a Lilly 21 memo. He was a Lilly employee in Germany, and they're 22 talking about what the German agency may require in 23 the German label, and paragraph three specifically 24 talks about -- 25 THE COURT: Well, this is a memo from a Lilly PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1320 1 employee to other Lilly employees? 2 MR. SEE: Yes, sir. 3 THE COURT: And the distinction, Mr. Vickery, 4 is? 5 MR. VICKERY: The distinction is this is not a 6 foreign label or foreign warning. This is a memo 7 about the importance of warning or the necessity of 8 giving a warning, and it was admitted for notice and 9 it's important notice information, but it is not a 10 foreign warning in and of itself. 11 THE COURT: Well, I'll allow 88. I find that 12 under 403, that that is more probative than giving 13 rise to any undue or unfair prejudice. It's a memo 14 from one Lilly employee to another regarding risk of 15 higher suicidality. 16 As far as these exhibits that have been 17 admitted so far in the case, I take it that there's 18 no -- that you're not still pursuing a foundation 19 objection? 20 MR. SEE: Well, Your Honor -- 21 THE COURT: I think you had kind of a shotgun 22 number of different objections, but Mr. Vickery has 23 sought to introduce certain exhibits and you haven't 24 objected to them, so I assume that, at least as to 25 foundation, you were not objecting at that point? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1321 1 MR. SEE: Well, Your Honor, we interposed 2 objections and we interposed foundation objections. 3 It was my understanding that the Court had ruled on 4 them. 5 THE COURT: Well, the Court couldn't rule in 6 advance of the foundation being laid in court as far 7 as the foundation objection. I assume that those are 8 not being pursued. 9 MR. SEE: Well, then I have misunderstood what 10 the Court has done. It was my understanding that the 11 Court had made its evidentiary rulings, and the ones 12 that the Court had ordered to be admitted, were going 13 to be admitted. That was my understanding. If I'm in 14 error, then I apologize to the Court. 15 THE COURT: If you have a foundation objection, 16 then you should assert it so that the witness, who's 17 on the stand at that point, can lay the foundation. 18 MR. SEE: We'll do that from now on. 19 THE COURT: All right. Now, as to the other 20 objection on the Food and Drug Administration 21 testimony of Dr. Shlensky, the Court is going to 22 permit Dr. Shlensky to testify as to causation. The 23 Court finds that as far as the objections made here, 24 that this was made in the context of testifying as to 25 the Food and Drug Administration. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1322 1 Secondly, this was explained in an earlier 2 declaration filed by Dr. Shlensky, I think, in 3 opposition to the motion for summary judgment. And 4 thirdly, in any event, it is very unclear and 5 ambiguous because the same question was asked to 6 Dr. Shlensky with respect to controlled clinical 7 trials. That was the very next question. 8 First he's asked, "Would you agree that it is 9 generally accepted in the medical and scientific 10 community that in order to come to a cause and effect 11 conclusion; that is, a drug causes an effect, the drug 12 must be associated with the effect of a statistically 13 significant degree?" And the answer, "I think that's 14 a fair statement." 15 And then the very same question is asked again. 16 Next question, "Would you agree that it is generally 17 accepted in the medical and scientific community, that 18 in order to come to a scientifically valid conclusion 19 about cause and effect; that is, that a drug has a 20 cause and effect relationship with a certain event, 21 that the data that must be evaluated is the data from 22 controlled clinical trials?" And he says, "That's 23 reasonable." 24 So the Court will permit Dr. Shlensky to 25 testify. The Court, essentially, makes the same PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1323 1 rulings as it did with respect to Dr. Healy as far as 2 the other Daubert rulings, and the Court will file a 3 written order with respect to both those witnesses. 4 MR. SEE: Your Honor, if I may? 5 THE COURT: Yes. 6 MR. SEE: Just so the record is clear, the 7 first quote on Page 336 of Dr. Shlensky's testimony 8 concerns the character of the relationship; that is, 9 that there must be an association to a statistically 10 significant degree. The second quote concerns the 11 source from which such data must come; that is, it 12 must be data that comes from controlled clinical 13 trials, and it is that data that must be analyzed and 14 produce a statistically significant association. 15 So I just want to clarify our position on the 16 record, those two questions really do not ask the same 17 thing. One asks -- the second one asks about the 18 source of the data; that is, that it must be from 19 controlled clinical trials as opposed to, for example, 20 case reports or epidemiology studies or so on. The 21 second is what must be the nature of the relationship. 22 THE COURT: Well, the Court's ruling is the 23 same, that it's unclear that Dr. Shlensky limited 24 himself to the opinion, particularly since this was 25 all done in the context of the registration and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1324 1 testifying with respect to the Food and Drug 2 Administration. 3 We'll take a short break to allow the jury to 4 come in. 5 (Whereupon, a recess was taken at 2:05 p.m.) 6 THE COURT: Please proceed, Mr. Vickery. 7 MR. VICKERY: Thank you, Your Honor. 8 Q. Dr. Shlensky, I want to lay your opinions out 9 on the table here and then we'll go back and discuss 10 the background and foundation for them. Tell us, sir, 11 in your opinion, has Eli Lilly given fair and 12 appropriate warnings about the risks of violence and 13 suicide to physicians that are prescribing Prozac? 14 A. Absolutely not. 15 Q. What are your opinions about the information 16 that they have put out for prescribing doctors about 17 those issues? 18 A. Well, the information that was provided to 19 prescribing physicians in the so-called package insert 20 in the Physicians Desk Reference at that time; that 21 is, in 1993, did not raise the issue of potential 22 suicide and violence despite the fact that there was 23 considerable amount of flurry in the literature at 24 that time, there were letters to the editors of 25 psychiatric journals, there were widespread mentions PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1325 1 in the press about this matter, and there was reason 2 for the company, especially given its history, to 3 respond to these worries that were raised and to have 4 appropriately warned physicians that there was reason 5 to believe that the drugs could evoke -- the 6 medication in question could evoke this unusual 7 response. 8 Q. Let me ask it to you this way: Do you have an 9 opinion as to whether, in response to those publicly 10 expressed concerns, that Eli Lilly and Company 11 misrepresented material facts about the risks of 12 violence or suicide to those physicians who would be 13 prescribing Prozac? 14 MR. SEE: Your Honor, I object and ask to 15 approach at side bar. 16 THE COURT: Very well. 17 (Whereupon, the following proceedings were had 18 at side bar out of the hearing of the jury.) 19 MR. SEE: My objection is this: The Court has 20 ruled that there is no cause of action in this case, 21 no affirmative misrepresentation. That was one of the 22 Court's clear rulings. The plaintiffs came forward 23 with no such representation and now Mr. Vickery asks 24 this question about that subject. 25 MR. VICKERY: Well, Your Honor, I reread the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1326 1 Court's ruling very clearly and you did not grant 2 summary judgment entirely on the misrepresentation 3 claims. What the Court ruled on were those claims 4 that doubted inside benefit of the bargain. An 5 analogy you used was to an expressed warranty, and 6 what you said was those things that would be part of 7 the benefit of the bargain, you granted summary 8 judgment, but you specifically did not grant summary 9 on -- 10 THE COURT: Negligence, negligent 11 misrepresentation. 12 MR. VICKERY: Right. That's exactly what I 13 did. That's -- 14 THE COURT: You asked him whether -- whether 15 Lilly misrepresented material facts. 16 MR. VICKERY: Negligent misrepresentation has 17 to be a misrepresentation of a material fact. If it's 18 not a material fact -- 19 THE COURT: You didn't ask him that. You asked 20 him whether Lilly misrepresented material facts. You 21 can rephrase the question. 22 MR. VICKERY: Okay. 23 (Whereupon, the following proceedings were had 24 in open court in the presence of the jury.) 25 THE COURT: The Court will sustain the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1327 1 objection to the last question. 2 Q (By Mr. Vickery) For the purposes of this 3 question, I want to ask you to assume that negligence 4 is quite simply failing to do what a reasonable drug 5 company would do in the context of Eli Lilly. 6 MR. SEE: Your Honor, I object. I object to 7 that representation to the witness. It's a legal -- 8 THE COURT: Sustained. 9 Q (By Mr. Vickery) Let me skip on. Do you have 10 an opinion as to whether or not Prozac, and the 11 ingestion of Prozac by William Forsyth, was a 12 substantial factor in the deaths of June and William 13 Forsyth? 14 A. Yes, I do. 15 Q. What is that opinion? 16 A. It clearly was a substantial factor. 17 Q. Okay, sir. Now, let's back up and just talk 18 about medicine, okay? Can you explain for us the flow 19 of information where we have three parties, we have a 20 drug company that manufacturers a drug; we have a 21 doctor, such as you yourself, who might prescribe that 22 drug; and we have patients, such as all of us might 23 be, for whom you might prescribe that drug. I mean, 24 how does it work in the real world? 25 A. I'm hesitating because Mr. See is standing up. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1328 1 I thought he was going to object again. 2 Q. I'm sure he will if he feels the necessity. 3 A. Well, one thing that immediately comes to mind 4 when you ask that question is the long-standing 5 relationship that was established by Eli Lilly with 6 such people as myself. Eli Lilly gave me my first 7 medical bag when I was a sophomore medical student, 8 and I always had a very high regard for the drug 9 company. 10 They were a firm that I respected, and thus 11 upon -- not because they gave me gifts, but they were 12 an established presence in the world of the practice 13 of medicine, and they took an interest in us from the 14 time we were medical students. 15 Now, I myself, and I think it's true of most 16 people, we really weren't -- in our choice of 17 prescribing medications, we were not affected by the 18 fact that they were nice to us. They took an 19 interest. They provided us with various things 20 throughout medical school to make life a little 21 easier, but it did create the impression that Eli 22 Lilly was a reliable source of information and a 23 reliable firm, so thus, within that context, the fact 24 that the company, at the time of all of this 25 controversy, took the position that the medication was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1329 1 safe, that -- well, I'm not answering your question 2 directly. Let me get precise to your question. 3 Thus, any information provided to me by such a 4 company, I would tend to expect to be reliable, given 5 their lengthy relationship that I've had with them and 6 given their reputation within the field. Thus, so the 7 way it works is that, particularly when a new 8 medication comes out, there's a certain amount of hype 9 associated with the new medication, and the material 10 is sent through the mail. There are detailed men -- I 11 remember Ms. Lee testifying here, and I was present in 12 the courtroom at that time. People such as her come 13 around and they provide us with information. 14 Q. Let me stop you right there. How important is 15 it when people like Amy Lee come around to visit you, 16 as a prescribing physician, that they voluntarily gave 17 you the information that's important and appropriate 18 to that particular drug that they're asking you to 19 prescribe? 20 MR. SEE: Your Honor, the objection is more of 21 relevance. It's not connected to the physicians that 22 prescribed the drug in this case. 23 THE COURT: Sustained. 24 Q (By Mr. Vickery) How important is it for a 25 physician, such as Dr. Riggs Roberts or Dr. Randolph PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1330 1 Neal, to have information provided to them without 2 their even asking from someone like Amy Lee? 3 MR. SEE: I object to that because it calls for 4 speculation. Those witnesses have already testified 5 on that topic. 6 MR. VICKERY: If I may respond, Your Honor. 7 That calls for this man's expert opinion. That's the 8 very thing he's qualified to do and been asked to come 9 here to do is to provide information about how 10 important it is for doctors. 11 THE COURT: I'll allow the question, although 12 those witnesses have already testified as to their own 13 experience. 14 MR. VICKERY: Thank you. 15 THE WITNESS: Well, generally speaking, the 16 relationship between the doctor and the detail man is 17 something of consequence because many physicians do 18 not have the time to read all the literature, and 19 especially if the detail men represent a company that 20 has a reputation for reliability, this information is 21 important, and they not only provide information, but 22 they bring around -- they used to. Now this practice 23 has changed over the years, but at that time, they 24 brought along lots of samples. 25 MR. SEE: Dr. Shlensky, pardon me. Your Honor, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1331 1 I object and I move to have the entire answer 2 stricken. It's not applicable to the situation about 3 this case. It's not relevant. 4 THE COURT: Let's get back to this case, 5 Mr. Vickery. 6 MR. VICKERY: I will, Your Honor. 7 Q. Let's say there's a risk that doesn't affect 8 the majority of people, that there's a risk that will 9 affect an identifiable small percentage of people, but 10 the risk is as grave as what we have seen here, death 11 by violence or suicide. What would you, as a 12 prescribing physician, expect from the drug company 13 with respect to such a risk? 14 A. All I expect is that I'm accurately informed 15 about the medication so that I can take this 16 information into consideration when I prescribe it for 17 my patients. 18 Q. Okay. And other than the package insert and 19 the calls from the rep, are there other ways that this 20 information is typically provided to prescribing 21 physicians? 22 A. Well, the companies, I don't know if this is 23 the right word, but they solicit research or they 24 solicit -- 25 MR. SEE: Objection. Relevance. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1332 1 THE COURT: Sustained. 2 Q (By Mr. Vickery) Okay. Let's do this: You 3 mentioned the Teicher and Cole article. When that 4 came out, did you read that article and take it very 5 seriously? 6 A. Yes. 7 Q. And were you aware of the prominence of the 8 authors of that article? 9 A. More or less. 10 Q. Was that information, which you believe was 11 important, for prescribing physicians to have access 12 to? 13 A. Yes. 14 Q. Let's look at what Lilly did, if we may. I 15 want to show you here -- 16 MR. SEE: May I have an exhibit number? 17 MR. VICKERY: Yes, Plaintiffs' Exhibit 15. 18 MR. SEE: Would you just hold on for a second, 19 please. 20 Q (By Mr. Vickery) We're going to look at 21 Plaintiffs' Exhibit 15 first, and this is a memo dated 22 January 30, 1990 to Dista Sales Representatives. Did 23 you know that Dista was a division of Lilly? 24 A. Yes. 25 Q. And it's regarding "The emergence of Intense PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1333 1 Suicidal Preoccupation with Fluoxetine," Teicher, 2 et al. Is that the reference to the Teicher article 3 that we've talked about? 4 A. Well, that was one of the many articles that 5 appeared in the literature. 6 MR. VICKERY: Mr. See's monitor got unplugged. 7 If you will bear with us for just one second. 8 (Whereupon, there was a discussion had off the 9 record.) 10 Q (By Mr. Vickery) Ms. Barth, if you would, 11 just hold it and we'll turn to Page 2. They say, 12 "Enclosed is an article of the February issue of the 13 American Journal of Psychiatry. Among the authors is 14 Jonathan Cole, an opinion leader in 15 psychopharmacology." Do you know what an opinion 16 leader is? 17 A. Well, it's not a term of art. I mean, it's 18 just plain English. 19 Q. Okay. Now, again, the jury is going to have 20 the opportunity to read this whole document during 21 their deliberations, but I want to flip on down to the 22 second page where they get their marching orders. 23 "Because these issues are not part of our current 24 marketing plan, you should not initiate discussions on 25 these articles." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1334 1 Now, in your opinion as a psychiatrist and a 2 forensic psychiatrist, prescribing medicines to 3 people, should the drug company be taking this 4 position, that they are not going to initiate 5 discussions, or should they be initiating discussions 6 about it, bringing it to your attention? 7 A. Well, my earnest wish is to be informed about 8 any problems that I might encounter in my prescription 9 of medications to patients that are already depressed. 10 I don't want something that's going to make them 11 worse. So if something like that is known to the 12 company that's providing this medication, I need to 13 know about it because if they're going to feel worse, 14 I'd like to be able to warn them of that, which 15 fortunately, I have been able to do because I am very 16 diligent with regard to reading journals and paying 17 attention to what's going on. But, you know, it's 18 necessary that I know about things and that they not 19 be withheld from my attention. 20 Q. Okay, sir. It said, "However, when asked to 21 comment on the issues, you should, number one, attempt 22 to determine the physician's level of experience with 23 fluoxetine," which we all now know is Prozac, "and his 24 or her concern regarding the information; two, based 25 on the summary provided in this letter and the Muijen PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1335 1 article, attempt to place in perspective these six 2 cases." 3 Having reviewed all the materials that you have 4 in preparation for your testimony in this case, can 5 you tell us what perspective Eli Lilly had in mind? 6 A. Well, I have -- 7 MR. SEE: I object to the question. It calls 8 for speculation, Your Honor. 9 THE COURT: Sustained. 10 Q (By Mr. Vickery) "Number three, refer to 11 medical correspondence in Indianapolis any questions 12 regarding our experience with issues raised in this 13 article." In your experience, over the years with Eli 14 Lilly salesmen, other than with respect to this issue, 15 if a sales rep came and you had a question, did they 16 just refer you to somebody central in Indianapolis or 17 did they have the information to provide you? 18 MR. SEE: Objection, relevance. 19 MR. VICKERY: Well the relevance, Your Honor, 20 is to the whole negligence claim, whether or not this 21 company, with respect to this issue, acted as an 22 ordinarily reasonable, prudent manufacturer would, and 23 the fact that they acted differently in the past 24 indicates that they are acting in a negligent way this 25 time. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1336 1 THE COURT: We've already had the two treating 2 physicians testify on this, so I'll sustain the 3 objection. 4 Q (By Mr. Vickery) Okay. And then they say, 5 "Again, because these issues are not part of our 6 current marketing plan, discussions should not be 7 initiated by you." 8 Were you visited by Lilly salespeople in 9 January, February of 1990? 10 A. I am very familiar with the Lilly 11 representative in Santa Barbara, and I can't 12 specifically recall that he visited me in those 13 particular months, but I know that I have regular 14 contact with him. 15 Q. And did they ever initiate with you any 16 discussion about this or provide any warning about 17 this problem to you? 18 MR. SEE: Objection, relevance. 19 THE COURT: Sustained. 20 Q (By Mr. Vickery) I want to ask you to kind of 21 put in lay terms for us an opinion you gave in your 22 report. In the report, you said, "Given reports of 23 tragic consequences of such major import, Lilly failed 24 to particularly inform the easily identified 25 prescriber." Can you put that in lay terms for us? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1337 1 MR. SEE: Your Honor, I object to the leading 2 of the witness and the reading of the hearsay 3 statement from the report. 4 THE COURT: Sustained. 5 Q (By Mr. Vickery) What should Lilly have done 6 in February of 1990 when the Teicher article sounded 7 the alarm, if you will? What should they have done? 8 A. Well, certainly from my standpoint, as somebody 9 who is prescribing the medication on a regular basis 10 and who is solicited to do so by the company and by 11 various literature that was provided to me, they 12 should have informed me as to any dangers of the 13 medication and, in fact, refrained from disguising or 14 misrepresenting the matters that had come to their 15 attention that might have been of great interest to me 16 and to other prescribing physicians. 17 Q. Well, let's kind of put it in perspective. 18 You've told us that it's your opinion that this drug 19 was a substantial factor in the deaths of June and 20 Bill Forsyth. Would you just explain the basis for 21 that opinion, please, sir? 22 A. Yes. It's very straightforward, and I think 23 Dr. Riggs Roberts alluded to this as well. He was 24 very confounded by what had transpired. He thought he 25 had a relationship with the patient and suddenly this PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1338 1 very odd and terrible event occurred. 2 So the problem is that these medications that 3 affect the brain -- which is what they do. I mean, 4 that's what they're designed to do and that's what 5 they do. They're targeted at certain centers in 6 what's called the old brain, actually. We have an old 7 brain and a new brain. The old brain is concerned 8 with things like emotion, smell, fundamental physical, 9 physiologic activities of a human being, let's say. 10 These medicines are targeted at those at certain 11 nuclei or centers in the old brain that have to do 12 with emotion. 13 Now, when you start putting drugs in the 14 brain -- and remember, every brain of every person is 15 a little bit different than every other brain. I 16 often like to think of faces in this respect. All of 17 our faces are alike in certain ways, but there's no 18 two, even twins, that are exactly alike. Same thing 19 is true with the brain. When you start messing around 20 with that chemistry, some odd things can happen. This 21 is not just true with Prozac, in which it is a 22 particular problem, but it's true with many of the 23 drugs that I use and that psychiatrists use to try to 24 manipulate brain chemistry in a constructive way. 25 Sometimes we have to deal with idiosyncratic or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1339 1 oddball reactions that take place. At the same 2 time -- I want to be sure I'm answering your question, 3 because I'm afraid that I'm getting sort of wordy 4 here. 5 Q. Let me kind of restate it. I appreciate your 6 concern for that. The question is, what is the basis 7 of your opinion that Prozac caused Mr. Forsyth to kill 8 his wife and then himself? 9 A. Okay. Now, I'm back on track. What is 10 perfectly clear to me is that Mr. Forsyth had one of 11 these idiosyncratic reactions of medicine. He 12 developed some strange feelings that were reported by 13 him to others. His children observed that he seemed 14 strange and different, and he reported some odd things 15 to the doctor, for example, that he felt much better 16 or more energized the next day. 17 Then it seems clear to me that he engineered a 18 stay in the hospital by being provocative in some way 19 to his children, so that their alarm was stirred up. 20 Then once he got in the hospital, he engineered his 21 way out of there, and unfortunately -- well, let's say 22 that somehow, and I believe that this is related to 23 the issue that brings us into this room today, the 24 physicians that were taking care of him did not 25 recognize what was taking place, and they did not take PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1340 1 measures that could have aborted this process. In 2 other words, could have prevented this odd psychosis 3 from evolving and that would have prevented the 4 radical behavior that took place and -- radical and 5 uncharacteristic, I must say, that took place and 6 which led to the deaths of two people. 7 So to explain the process, it's extremely 8 straightforward really when you look at it simply on 9 the face. The man was given a medication, and within 10 about -- within ten days, he was behaving in a 11 completely uncharacteristic fashion and bringing about 12 a very tragic process. That ten-day period, 13 incidentally, is precisely aligned with my clinical 14 experience. 15 What I tell patients when I give them the 16 medication is, look, usually the medicine doesn't do 17 anything right away because it's a slow-acting 18 medication. I'm elaborating on my answer, I hope it 19 is okay. 20 Q. Well, let me back up, because the Court would 21 prefer that we go on questions and answers. Let me 22 ask you a specific question. You started to mention 23 your clinical experience. How long have you been in 24 the business of prescribing psychoactive drugs to 25 people? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1341 1 A. Well, I've been doing that for -- ever since 2 they came out, for 40 years. 3 Q. Now, when we say psychoactive, what are we 4 talking about? What does that mean? 5 A. Well, over the years, it has had different 6 meanings, but basically, psycho means mind, and it's 7 medications that are meant to affect the mind, the way 8 people feel, the way people think, the way people act, 9 all of those things put together. That's what the 10 mind is, really. 11 Q. And is part of the foundation of your opinion 12 regarding causation that this drug caused this man to 13 commit these acts, your own experience, your own 14 clinical experience with other patients? 15 A. Absolutely. 16 Q. And could you tell us what experiences you've 17 had that lead you to the conclusion that, in this 18 case, this drug is implicated? 19 A. Well, when I described my position at that 20 time, I was with Sansome Clinic. I was extremely 21 busy, working about 12 hours a day, seeing lots of new 22 patients all the time, seeing lots of depressed 23 patients, because those are the people that come to a 24 clinic when they are not feeling well. Oftentimes, 25 they go to other doctors and then the other doctors PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1342 1 refer them to me. 2 So I was in a position to have a vast clinical 3 experience at that time. And the -- I had the 4 opportunity to use the medication soon after it was 5 introduced and soon after I satisfied myself that it 6 might be a useful agent. 7 Now, what I observed is that about a third of 8 people for whom I prescribed the medication had no 9 reaction whatsoever. There was a small group of 10 people that had a reaction right away, but generally 11 speaking, the large group of people or the general 12 population of people who received Prozac, about a 13 third of them had some side effects which start about 14 a week after they start the medication. 15 The side effects are various things, but often 16 involve a certain amount of physical restlessness, a 17 sense of agitation, a sense of feeling worse, 18 disturbed and so on. A small group of those people -- 19 now, usually these side effects incidentally can be 20 addressed. In other words, I learned ways right away, 21 because I had seen such phenomenon before, so I 22 learned ways right away to deal with these side 23 effects and get the people through the first few 24 weeks, which is when the side effects occur. Because 25 at that time, we had one SSRI, I really wanted the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1343 1 medication to succeed in what I had in mind, so I 2 would try to get them through this period. 3 But there was a small subset of patients that 4 would really feel terrible, and they would just be 5 scared and frightened and clearly in danger of 6 flipping out completely or becoming grossly psychotic. 7 Now, some of those patients I had to actually use 8 antipsychotic drugs to maintain them and try to get 9 them through this period, and some of them, I had to 10 take off the drug. It was a very small group of 11 patients, but I had a lot of patients to work with, so 12 I was able to have what I think is really a much wider 13 experience than most people who are prescribing the 14 medication. 15 Q. Let me ask you this, Dr. Shlensky, we've heard 16 a lot from Dr. Healy about challenge/dechallenge. In 17 those patients that you had that developed these 18 really bizarre, frightening side effects, when you 19 took them off the medicine, did the symptoms go away? 20 A. Yes, in general, that was the case. Sometimes 21 I would have to use other medications temporarily, but 22 the side effects would go away, as you say, yes. 23 Q. Well, we're talking about causation here and, 24 sir, I want to ask you about everything the defense 25 has been talking about: The fact that they have been PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1344 1 through marriage counseling, the fact that Mr. Forsyth 2 was a Type A guy who had retired four or five years 3 earlier, the fact that for some period of time, at 4 least, he didn't share the same, I forget Mr. See's 5 words, but the same religious zeal as his wife and 6 son. I mean, have you considered all of those things? 7 A. Indeed I did. Actually, Mr. Forsyth, I would 8 say, was a sterling character, and he had the 9 conflicts that a lot of people have. In fact, I've 10 often thought that the patients I see are probably 11 healthier than if -- I have 20 patients of mine. 12 They're probably healthier than 20 people I might 13 select off the street at random. 14 And this guy was a -- he was a productive 15 person. He was a family man. He was concerned about 16 his relationship with his wife. You know, he seemed 17 to be a sterling person, really. And the conflicts 18 that he experienced at that stage of life are 19 classical conflicts, so there was nothing about his 20 history that suggested anything that he was capable of 21 some savage, violent act, or anything of that nature. 22 It was a radical departure from his normal modus 23 operandi or way of proceeding. I used that word 24 because it was used before a little while ago in this 25 courtroom. This was not his approach to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1345 1 problem-solving at all. 2 He was obviously affected by the medication in 3 such a way that he just did not have his normal 4 resources available to him. He was in a world of his 5 own, behaving in a way that was completely foreign to 6 him and foreign to anybody that ever knew him. 7 So once you've prescribed the medication 8 thousands of times and you've seen these reactions, 9 you had to abort them, you know. Fortunately, I've 10 not had any suicides, you know. That's because I've 11 been careful and I've been thoughtful about these 12 issues. I'm really the careful type. I just don't 13 take any -- if I take some risks, I do it in a very 14 calculated way. 15 Q. Dr. Shlensky. 16 A. I'm wandering again, sorry. 17 Q. I understand. In the hopes that you might make 18 your airplane, I'm going to thank you and pass you and 19 let Mr. See see what he can do to finish you out this 20 afternoon. Thank you for coming. 21 22 CROSS-EXAMINATION 23 BY MR. SEE: 24 Q. Afternoon, Dr. Shlensky. 25 A. Hi. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1346 1 Q. If you'll bear with me for just a second, I'm 2 going to get a clean piece of paper here. 3 A. Sure. 4 MR. SEE: May I have just one moment, Your 5 Honor? I need to find a copy of Dr. Shlensky's 6 deposition transcript. 7 THE WITNESS: I've got some right here. 8 MR. SEE: I beg your pardon, Your Honor, I 9 didn't know I would be doing this right this minute. 10 If I may approach the witness? 11 THE COURT: You may. 12 Q (By Mr. See) Just in case we need these, 13 Doctor, we'll put them up here and you can have ready 14 reference to them. 15 A. Okay. 16 Q. Dr. Shlensky, just a few minutes ago, 17 Mr. Vickery put up on his television screen a memo to 18 Lilly sales representatives, and that was dated 19 January the 30th of 1990. Do you recall that? 20 A. Yes, sir. 21 Q. And you gave testimony about Lilly not bringing 22 to the attention of prescribing physicians that an 23 article by Dr. Teicher had been published, right? 24 A. Well, actually, I don't think that's exactly 25 what I said. I think I was referring to literature -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1347 1 that particular article, I think, was in the medical 2 journal of -- or the Journal of the American 3 Psychiatric Association. 4 Q. Was it your intention, Dr. Shlensky, by that 5 testimony that you gave about this Exhibit 15 that 6 Mr. Vickery put up, to have the jury believe that 7 Lilly did not directly bring the Teicher article to 8 the attention of every physician in the United States 9 that was in the AMA? 10 A. I think you misunderstood my testimony, because 11 what I was talking about was that there were many, 12 many, many other articles including -- or there was 13 much other information that was available to Lilly 14 through their own internal process, documents that I 15 reviewed that raised this issue long before 16 Dr. Teicher did. 17 Q. All right. You know, Dr. Shlensky, that Lilly, 18 in fact, sent a letter to every doctor in the United 19 States that's a member of the American Medical 20 Association, that Lilly sent it in August of 1990, and 21 that letter -- I'm not finished yet. 22 A. I'm sorry. 23 Q. And that letter brought to the attention of 24 every one of those doctors the fact that the Teicher 25 article had been published, what it was about, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1348 1 they should be aware of it; you know that to be true, 2 don't you? 3 A. Absolutely misrepresented by you, Mr. See. I'm 4 sorry. It's not a personal accusation, but that's not 5 the way I read the letter at all. 6 Q. First, you know that the letter was sent? 7 A. I have seen it recently. It was completely the 8 opposite of what you suggest. 9 Q. Now, I'd like to ask you, Dr. Shlensky, about 10 your testifying. 11 A. Okay. 12 Q. You actually advertise your availability to 13 testify and consult in legal matters, don't you? 14 A. Not precisely, no. If I -- you know, it's 15 something I want to do, and the only way that I can do 16 it, as I've indicated before, is in this area of 17 forensic psychiatry, which is my subspecialty. I want 18 to be involved in matters like this. They interest 19 me, so when I am solicited to add my name to a list, 20 for instance, the Los Angeles Bar Association 21 publication of people who are experts or who are 22 knowledgeable about particular things, I may avail 23 myself of this opportunity. I don't do it all the 24 time because I couldn't afford it, really. I'm 25 solicited about three times a month to be on some list PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1349 1 or have some sort of something some place. 2 Q. Because of your answer to my question, I need 3 to ask you to refer to Page 211 of your deposition. 4 It's the first volume. 5 A. 211? 6 Q. Yes, sir. I'm going to ask you about Line 15. 7 If you have it there, I will ask you first, you recall 8 that I took your deposition, do you not, sir? 9 A. This is exactly what I just said to you. 10 Q. No, you have to listen to my question, 11 Dr. Shlensky, if you will. You recall that I took 12 your deposition in this case? 13 A. Yes. 14 Q. And you were sworn to tell the truth, right? 15 A. Yes. 16 Q. And were you asked this question and gave this 17 answer. 18 "QUESTION: Have you ever advertised your 19 availability to consult regarding legal matters? 20 "ANSWER: Yes." 21 Did you give that answer? 22 A. Yes, and I went on to explain just as I 23 explained here. 24 Q. Now, I think you said, and I want to make sure 25 that I'm clear, you have listed yourself in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1350 1 directories so that lawyers could sort of go shopping 2 and pick out experts if they need them; isn't that 3 right? 4 A. Well, that's one way to put it. I mean, I have 5 not listed myself. I responded to requests from 6 people that publish directories, West Law or whatever, 7 the bar association, as to whether I would be 8 interested in making the fact that this was my 9 specialty known, and you could call it shopping if you 10 want, but it's kind of shopping in a way, yeah. 11 Q. You've listed yourself in the Los Angeles 12 County Bar Directory? 13 A. Well, they listed me. I don't have control 14 over their directory. They asked me if I would pay 15 them $300 or something to be listed, and I agreed to 16 do it. Something like that. 17 Q. At one point, you engaged a public relations 18 firm in Santa Barbara, California, to advertise your 19 availability to testify as an expert witness; isn't 20 that right? 21 A. Well, I would like to answer with a complete 22 explanation. That was when I left my regular job, so 23 to speak, and I was starting out, and when I had 24 decided that I wanted to change the nature of my 25 practice, and it was the -- it was not unusual within PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1351 1 that setting for -- in fact, this particular woman 2 worked for the medical society. So it was not unusual 3 to have somebody make sure that the newspaper spread 4 the word that Dr. Shlensky had left Sansome Clinic, 5 that he was going to be doing both regular psychiatry 6 and forensic psychiatry, so the answer is yes, but I'd 7 just like to make sure that a misimpression is not 8 created. 9 Q. You have -- you have a website on the Internet? 10 A. Well, I was offered a free website and I 11 availed myself of it, and I haven't really looked at 12 it for a couple of years. 13 Q. So somebody that's surfing the Internet and has 14 a need for someone to testify about a psychiatric 15 matter, Dr. Ron Shlensky is there? 16 A. They're not going to choose Dr. Ron Shlensky 17 unless they are informed about his credentials and 18 know something about him, because there are lots of 19 choices available to them. 20 Q. In fact, Doctor, isn't it correct that you have 21 actually gotten out the telephone book and started 22 calling lawyers from the telephone book to say I'm 23 available, can I send you over my CV? 24 A. In Santa Barbara, when I left Sansome Medical 25 Clinic and I decided to go on my own, I was like any PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1352 1 other human being would be under the circumstances, 2 probably feeling a little insecure, and I definitely 3 called law firms and people that I knew and said, I 4 left Sansome. I'm going to be going on my own. I'm 5 going to be doing more -- I have a law degree and I've 6 decided I'm going to use that training to more 7 availment. 8 Q. Now, let me ask you about your own prescribing 9 of Prozac -- 10 A. Yes, sir. 11 Q. -- you, as a physician. You have prescribed 12 Prozac? 13 A. I have prescribed it many, many times. 14 Q. And is it correct, you believe that Prozac is a 15 reasonably safe drug? 16 A. Well, with the caveats of which we've been 17 speaking today or the warnings of which we've been 18 speaking and properly used and properly informed 19 patients, it's a reasonably safe drug. 20 Q. You have prescribed Prozac for thousands of 21 patients? 22 A. Yes, I think that's a fair estimate. 23 Q. And you agree that Prozac is generally 24 considered to be a much safer drug than the older 25 tricyclic antidepressants? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1353 1 A. Well, this is because the certain side effects 2 that were associated with the old antidepressants are 3 not generally associated or generated, let's say, by 4 Prozac. That's one difference. It's not always the 5 case, but generally speaking, it is the case. 6 Q. Your voice fell. You say, generally speaking, 7 that is the case? 8 A. Yes. There are certain side effects that were 9 a problem. It's one of the reasons that I think that 10 these warnings are so important because these drugs -- 11 these new antidepressants seem to be much easier to 12 use by physicians than the old antidepressants. The 13 old antidepressants had various side effects that had 14 to be addressed or somehow managed right away. 15 This drug looks like it's very easy, and Eli 16 Lilly provided week-supply sample boxes and many 17 doctors -- you know, if a patient came in and said 18 they weren't feeling well in some way, there were 19 plenty cabinets full of samples that had been brought 20 around by Eli Lilly. So there's the kind of -- 21 there's a specter of safety associated with the drug 22 and that's why, I think, it's all the more important 23 that these -- that side effects, such as this, be made 24 known to all these people that were prescribing the 25 drug that was so easy to prescribe. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1354 1 Q. I took your deposition in June of 1997. Does 2 that date sound about right to you? 3 A. Yes, sir. 4 Q. And at that time, I asked you if you had, in 5 the recent past, had any communication with anybody 6 who worked for Lilly. You remember me asking you 7 that? 8 A. Well, I don't have a specific recollection. 9 Q. And you remember what you answered? 10 A. Well, I probably said Jim -- right now, I'm 11 blocking out his name, but he lives in my town. 12 Q. All right. I'll ask you this way. In fact, 13 you told me, at the time of your deposition, that yes, 14 you had been in contact with a representative of Lilly 15 because you had an indigent patient, a patient who 16 could not afford to get an antidepressant, and you 17 asked the Lilly representative if they would provide 18 you with Prozac so that that person could get their 19 antidepressant; isn't that right? 20 A. Yes, they have a program for that. 21 Q. And Lilly did that, didn't they? 22 A. Yes, they did. 23 Q. So in that case, you prescribed Prozac for that 24 lady, didn't you? 25 A. Yes. It was a man. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1355 1 Q. I beg your pardon, a man. Now, when you 2 prescribe prescription drugs, whether it's Prozac or 3 anything else, before you prescribe a drug for one of 4 your patients, you consider the potential benefits 5 that the drug might bring the patient, right? 6 A. I wouldn't prescribe a drug unless I thought it 7 was going to help the patient. 8 Q. All right. And you also consider the potential 9 risks the drug may have for that patient, right? 10 A. And if I know of risks, then I want to inform 11 my patient in a very forthright manner about the risks 12 and, in fact, I'm duty bound to do so. 13 Q. And, in fact, every time you prescribe Prozac 14 for one of your patients, you go through this 15 benefit/risk analysis, don't you? 16 A. Well, I don't have to do it every time. I 17 mean -- those things become, like everything else we 18 do, driving a car. I mean, you don't have to really 19 sit down and think about how to drive a car every time 20 you get into it. So if you're an experienced doctor 21 prescribing a medication, you don't have to think all 22 the steps through each time. 23 Q. And for any of your patients, you don't 24 prescribe a prescription drug, whether it's Prozac or 25 anything else, unless you make the determination, for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1356 1 that patient, that the potential benefits outweigh the 2 potential risks, correct? 3 A. Correct, and I have to know the risks. 4 Q. Now, I think you've told us, of the thousands 5 of patients for whom you have prescribed Prozac, none 6 of them have committed suicide, correct? 7 A. Right. And I attribute that -- actually, I'm 8 fortunate. I've never had a patient kill themselves 9 under my care, and I attribute that to luck and that 10 I'm very, very careful about such matters and very 11 straightforward. 12 Q. And of the thousands of patients for whom 13 you've prescribed Prozac, none of them has ever 14 committed a homicide, correct? 15 A. That's correct. 16 Q. And of the thousands you've prescribed Prozac, 17 none of them have committed a homicide/suicide; that 18 is, killed someone else and then commit suicide 19 themselves? That's never happened in your patients? 20 A. And I think it's very clear to me that this is 21 because I am extremely careful in the instructions 22 that I give to my patient when I prescribe Prozac or 23 many other agents. 24 Q. And of the thousands of patients for whom you 25 prescribe Prozac, none of them have committed a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1357 1 violent physical assault on another person? 2 A. No. And I could tell you that if I had not 3 taken the precautions that I have, I'm sure some 4 tragedies would have occurred. 5 Q. In fact, in your clinical practice of 6 prescribing Prozac for thousands of people, you have 7 never had any bad outcomes, have you? 8 A. Not outcome, I've had patients get ill and I've 9 had to address these side effects, and I've had some 10 pretty miserable patients and I had to stop the drug 11 sometimes, but I have been careful to avoid such 12 tragic outcomes. 13 Q. Let me ask you a general view first. You don't 14 have any doubt, do you, that Prozac is, in fact, a 15 very good drug for the treatment of depression? 16 A. I'm sorry, there was one word in your question 17 that I couldn't understand. 18 Q. You don't have any doubt that Prozac is a very 19 good drug for the treatment of depression? 20 A. It is a very good drug. It just has to be used 21 correctly. 22 Q. In fact, you've said Prozac, in your view, is a 23 marvelous drug, haven't you? 24 A. I remember using that in the deposition. 25 Q. And it got in your deposition because you said PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1358 1 it? 2 A. That's right. 3 Q. Okay. Now, you know from your own practice 4 that not every antidepressant drug works for every 5 patient, right? 6 A. I'd say that's absolutely correct. 7 Q. Isn't it correct that for any of the 8 antidepressant drugs that are available today or in 9 1993 or '2, that any of them are only effective for 60 10 or 70 percent of the people; isn't that right? 11 A. Well, I don't know the actual numbers. I just 12 know that prescribing such medication is an art, and 13 you have to know about the medicines. You have to be 14 prepared to address certain side effects, and again, 15 you have to know of the possible risks. 16 Q. And in your opinion, an antidepressant drug is 17 not a bad drug or a defective drug simply because it 18 may not work for every one? You would agree with 19 that? 20 A. Oh, yes, I would agree. 21 Q. In fact, you know that in psychiatry, it is the 22 standard and accepted practice to try a particular 23 antidepressant for a particular patient for six or 24 eight weeks or so to see if that drug will help that 25 patient, and if it doesn't, to try a different one? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1359 1 A. That really isn't a good description of how we 2 do it. We take in a variety of factors, such as 3 things like has anybody else in the family been on 4 medication? If so, what? What kind of personality 5 does the person have we're prescribing? Have they 6 ever had a drug reaction? What kind of side effects 7 do we want? 8 For example, if somebody is not sleeping, we 9 might give something that's sedating. We might give 10 it at bedtime. If somebody has no appetite, we might 11 give something that causes people to gain weight when 12 they take it. So there's a whole process that we go 13 through or I go through, and I know many of my 14 colleagues do try to identify the particular 15 medication in this particular instance. And then we 16 have to try to get therapeutic doses or enough of the 17 medicine into that particular person, but we also have 18 to be ready to change if the medication is bringing 19 about some side effect that's making the patient feel 20 worse. 21 But primarily, the cardinal rule of practice of 22 medicine is do no harm. So we think about that issue 23 and we have to have information available to do that. 24 Q. And after you prescribe a particular 25 antidepressant for a patient, if you give it a long PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1360 1 enough trial to see whether it provides antidepressant 2 relief, if it doesn't, you switch to another one to 3 see if that might work for that particular patient, 4 right? 5 A. Not precisely. Every situation is a little bit 6 different. Sometimes what we'll do, if somebody is 7 going through all the trouble to get through the side 8 effects and they're not getting the good -- I think 9 there are a lot of tricks to make the medicine work. 10 Sometimes we add lithium. Sometimes we add thyroid. 11 Every situation is a little bit different than any 12 other situation, just like the brains are that I 13 described earlier. 14 Q. I want to ask you about a condition called 15 akathisia. You know what that is? 16 A. Yes, I do. 17 Q. Now, there's been some testimony in the case so 18 far about akathisia and what it is and I want to make 19 sure we understand what your position is. Akathisia 20 is a condition in which patients are in a very 21 restless state, correct? 22 A. Well, that's an oversimplification. 23 MR. SEE: May I approach, Your Honor, and hand 24 the witness another transcript. 25 Q. Let me hand you an article by Langer, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1361 1 L-A-N-G-E-R. The question I have for you, 2 Dr. Shlensky, is this: Isn't it correct that a person 3 with akathisia is a person in a very restless state, 4 they have trouble sitting still, they pace, they may 5 wring their hands, and they feel very uncomfortable 6 emotionally; wouldn't you agree with that description? 7 A. Yes, more or less. 8 Q. So according to Dr. Shlensky, a restless state, 9 patients have trouble sitting still, they pace, they 10 may wring their hands, and they are very uncomfortable 11 emotionally; is that right? 12 A. Well, these are features of akathisia. They're 13 not necessarily all present in any given patient. 14 Q. Now, you have given some testimony here today 15 about your view that the warnings and instructions 16 that Lilly provided about Prozac in 1992 and early 17 1993 were inadequate, right? 18 A. Yes. 19 Q. Now, you understand that prescription drugs and 20 their labeling are regulated in the United States by 21 the Food and Drug Administration, right? 22 A. Well, I'm not going to blame the FDA if Lilly 23 doesn't give an appropriate warning. 24 Q. With respect, I'll ask my question again. You 25 understand that the manufacturer of prescription drugs PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1362 1 and the labeling and inserts for prescription drugs 2 are regulated in this country by the FDA? You 3 understand that? 4 A. Yes. 5 Q. Dr. Shlensky, have you ever told the FDA that 6 Lilly's warning for Prozac was inadequate? 7 A. I'm thinking. I know I said no when you 8 deposed me, but I just want to make sure I'm 9 remembering everything I've done. I don't think I've 10 ever told them that. 11 Q. Okay. 12 A. I thought it was becoming pretty clear. 13 Q. And you gave an opinion here in this courtroom 14 that you believe that Prozac causes people to kill 15 themselves, right? 16 A. Well, I believe it because I've seen the drug 17 produce odd responses and I've seen many, many 18 articles in both the American and the foreign 19 literature that substantiate that point of view. 20 Q. Did you ever pick up the telephone and call up 21 the FDA and say, you guys have got to get on the ball 22 on Prozac. It causes suicide. Did you ever do that? 23 A. I think the reason I didn't do it is because 24 there were so many letters to the editor of the 25 Journal of the American Psychiatric Association, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1363 1 there were so many things -- I have clipped a bunch of 2 stuff just in the last few months, and collected a 3 bunch of articles where this whole process is 4 acknowledged in the literature. The literature is 5 replete with -- if the FDA doesn't know it now, you 6 know, they're never going to know it, but I think they 7 do know it now. 8 Q. Well, let me ask you about that. 9 A. Yeah. 10 Q. Isn't it correct that the Food and Drug 11 Administration has analyzed the studies and the data 12 about Prozac and found that there is no link between 13 Prozac and suicide; isn't that right? 14 A. I don't think that's correct. I mean, I'm not 15 sure. I know there's something about that, but I 16 don't think the way you're putting it is accurate. I 17 don't know more about it than that. 18 Q. When I asked you that question at your 19 deposition, you told me you didn't know one way or the 20 other; isn't that right? 21 A. Well, you know, I must say, I've read a lot of 22 stuff since 1997, so my knowledge at this time is 23 different than my knowledge at that time. I've 24 learned a lot more about akathisia, for example. 25 Q. Well, I'm asking you right now. As of your PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1364 1 knowledge today, isn't it correct that the FDA has 2 considered the studies and the data about Prozac and 3 determined that there is no link between Prozac and 4 suicidality; isn't that right? 5 A. Well, I really don't know. I mean, I assume 6 you wouldn't ask me if you didn't think it was right, 7 but I really don't know that. If they did that, they 8 were wrong anyway, I can tell you that. 9 MR. SEE: Okay. Your Honor, at this point, I 10 want to offer Exhibit 1067. 11 MR. VICKERY: I have no objection to this one 12 as long as the complete document -- this is just a 13 blowup, an excerpt of a smaller document, and as long 14 as the other document is offered in tandem with it so 15 the jury will have the whole thing, I don't object. 16 MR. SEE: I'm offering the document and just 17 desire to show the jury this excerpt from it, Your 18 Honor. 19 THE COURT: Very well. 1067 is admitted. 20 (Whereupon, Exhibit No. 1067 was admitted into 21 evidence.) 22 Q (By Mr. See) Is this print too small for you 23 from that distance, Dr. Shlensky? 24 A. I'll tell you in a minute. I think I can get 25 it. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1365 1 Q. The part I want to bring to your attention here 2 is first the date of August 1, 1991, and then this 3 line that starts out right here and it's a quotation 4 from the Food and Drug Administration, and it says, 5 "The data and information available at this time do 6 not indicate that Prozac causes suicidality or violent 7 behavior." 8 And my question for you is: Did you know that 9 the FDA had considered these articles and studies and 10 come to a conclusion that there is no link between 11 Prozac and suicide or violent behavior? The question 12 is, did you know that? 13 A. The answer is that it's wrong, and I'll tell 14 you, first of all, you're showing me something from 15 1991. That was about a few years after Prozac came 16 out. The literature has been back and forth on that 17 issue. It is now accepted that Prozac causes 18 akathisia and that that's probably the mechanism of 19 action, or at least part of the mechanism of action, 20 as to why there were these reports of suicide and 21 violence and so on. It's just a given now, Mr. See. 22 That's 1991. 23 Q. If you'll recall my question, Dr. Shlensky, it 24 was, did you know, as you sit here today testifying, 25 that the FDA determined, after its review of the data, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1366 1 that Prozac does not cause suicide or violent 2 behavior? That's a question. Did you know that? 3 A. Well, I don't know it and I don't believe it 4 and it's not true. 5 Q. And the next question is this, Dr. Shlensky: 6 Since this time, August of 1991, has the Food and Drug 7 Administration changed its conclusion at all; that is, 8 that Prozac does not cause suicide or violent 9 behavior, to your knowledge? 10 A. I think I'm going to get in trouble for saying 11 this, but I think Lilly has changed its product 12 insert. 13 Q. If you'll just have my question in mind, 14 Dr. Shlensky. 15 A. Okay. 16 Q. From 1991 up until today, has the FDA changed 17 its conclusion? 18 A. I don't know. They should. 19 Q. So in this question of whether Prozac causes 20 suicide or violent behavior, Dr. Shlensky would be 21 over here saying that it does, and the Food and Drug 22 Administration of the United States would be over here 23 saying that it does not? 24 A. Well, Dr. Shlensky, Dr. Jick, Dr. Teicher, 25 Dr. Tony Rosenberg, Dr. Rosenthal, Dr. Fava, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1367 1 Dr. Graham. I'm not the only guy that thinks this. 2 And I've said I've got a bunch of articles that I've 3 clipped in the last year or so. You know, in my 4 reading of the literature at this time, Mr. See, it is 5 that it's a given now. It's not controversial 6 anymore. 7 Q. As part of one of the things you reviewed in 8 coming to your opinions in this case about Prozac 9 causing Mr. and Mrs. Forsyth's deaths, one of the 10 things you reviewed was a set of handwritten notes 11 made by Mr. Forsyth; is that correct? 12 A. You know, that, I have to admit, I don't 13 specifically recall those. You mean Mr. or Mrs.? 14 Q. Mister. 15 A. Right at the moment, I'm blocking those. 16 Q. And would you agree that after your review of 17 Mr. Forsyth's notes in this case, you came to the 18 conclusion that there was really nothing significant 19 in them on which to base your opinion? 20 A. I'd like to look at those again, because for 21 some reason, I did not focus any attention on that in 22 recent times. I don't know how that happened. 23 Q. All right. Would you refer to Page 143 of your 24 deposition. It's in Volume I. 25 A. Let's see. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1368 1 Q. I want to ask you about Line 10. 2 A. 143? 3 Q. 143. Are you there? 4 A. Just about. Just about. 5 Q. 143 at Line 10. Are you there? 6 A. Yes. 7 Q. And were you asked this question and did you 8 give this answer -- 9 MR. VICKERY: Excuse me, Mr. See. Your Honor, 10 I'll object and ask, for fairness, that any offer go 11 back to 142, Line 11, to put this whole sequence in 12 context. 13 Q (By Mr. See) Let me just ask you this, 14 Dr. Shlensky: Do you recall reviewing those notes and 15 after you reviewed them, you wrote the Spanish word 16 nada, N-A-D-A, which means nothing, on the cover of 17 those notes? Do you recall doing that? 18 A. I remember writing the word nada. I can't 19 remember the notes. I'd love to look at them again, 20 because I might draw a different conclusion at this 21 time. I like to keep my mind open, but I don't 22 remember those. 23 Q. Would you refer to Page 143 at Line 10, please? 24 A. Pardon me? 25 Q. Page 143 at Line 10, please. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1369 1 A. Well, I realize that I may have said that, but 2 I just don't have a specific recollection. 3 Q. I haven't put the question to you yet, sir. 4 Were you asked this question and gave this answer -- 5 MR. VICKERY: I object. It is not in context, 6 Your Honor. Unless he starts on 142, Line 11, it is 7 simply taking it completely out of context. 8 MR. SEE: If you'd like me to read it all, I 9 will. 10 MR. VICKERY: Thank you. 11 Q (By Mr. See) Start at Page 142, Dr. Shlensky, 12 at Line 11, and if you're there, were you asked this 13 series of questions and gave this series of answers: 14 "QUESTION: Is Exhibit 7 the notes or a 15 photocopy of the notes of Mr. William Forsyth provided 16 to you by Mr. Downey's office? 17 "ANSWER: Yes, this was provided to me by 18 Mr. Downey's office. 19 "QUESTION: You have made a note on the cover 20 of Exhibit 7? 21 "ANSWER: Yes. Sure. 22 "QUESTION: Would you read it, please? 23 "ANSWER: It said, 'nada,' a Spanish word for 24 nothing, except nothing to suggest potential violence. 25 In other words, nothing in the history of Mr. Forsyth, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1370 1 the victim, that would leave one to consider him a 2 person predisposed to any violent behavior. 3 "QUESTION: What did you mean by the word 4 'nada,' which means nothing in Spanish? 5 "ANSWER: It just helps me. When I go back -- 6 I know there's a probability when I read these things, 7 I will have to go back and look at them again. It 8 means nothing is there. Nothing. It means this is 9 not something that you want to spend a lot of time 10 with this. 11 "QUESTION: Your meaning in writing 'nada' on 12 Exhibit 7, there was nothing in Exhibit 7 -- saying 13 there was nothing significant in Exhibit 7 on which 14 you based your opinion? 15 "ANSWER: Right, nothing there." 16 Were you asked those questions and did you give 17 those answers? 18 A. Well, yes, I did, but I pointed out just now 19 that I don't remember the notes. I said this. 20 THE COURT: What are you writing down, Mr. See? 21 MR. SEE: I'm writing, "Bill Forsyth's notes." 22 Q. And then, would it be fair to say, 23 Dr. Shlensky, from your deposition, you concluded 24 nothing significant in there? 25 A. Yes, I think -- I don't know why you're asking PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1371 1 me to tell you there's nothing significant when I 2 can't remember seeing them. I know I said that in 3 1997. 4 Q. That's all I really needed to know. 5 A. But, you know, that's all I can say is that I 6 said it, but I'm not saying it's so. 7 MR. VICKERY: Excuse me, Dr. Shlensky. Your 8 Honor, I object to Mr. See writing something that is 9 not accurate. What he said in the deposition is there 10 was nothing in the notes to suggest potential 11 violence. 12 THE COURT: I'll sustain the objection. 13 MR. SEE: Your Honor, with respect, the reading 14 at 143 at Line 10, it says plainly, "Your writing 15 'nada' saying there was nothing significant in 16 Exhibit 7 on which you based your opinion? 17 "ANSWER: Right, nothing in there." 18 THE COURT: I think what he's explained more 19 elaborately to you at Line 23 at 142 is, in other 20 words, nothing in the history of Mr. Forsyth, the 21 victim, that would lead one to consider him a person 22 predisposed to any violent behavior. That's the way I 23 understand the testimony. 24 MR. SEE: Very good. I'll take this one off, 25 Dr. Shlensky. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1372 1 THE WITNESS: Okay. Well, that's why I read 2 these things, to look for something that might be 3 significant. 4 Q (By Mr. See) Would you agree that 5 Mr. Forsyth, Sr. was a perfectionist? 6 A. I'm not sure about that. I don't recollect any 7 specific perfectionistic acts in the sense of 8 pathologically perfectionistic acts, but I do -- my 9 sense of him was that he was an industrious person who 10 liked to accomplish things and who was active and who 11 approached things with a certain mentality of 12 productivity. Now, I don't see him as somebody who 13 was compulsively cleaning or something like that. 14 Q. In your review of the materials that are 15 relevant to the case, one of the things you looked at 16 was the deposition of Dr. Thomas Brady, who was the 17 Forsyths' marital counselor? 18 A. Yes. 19 Q. And on the cover of Dr. Brady's deposition, you 20 wrote the word, "perfectionist," correct? 21 A. Something I don't recollect specifically, but I 22 may have had that impression from reading that. At 23 any rate, whether I wrote it or not, it's not my 24 impression that he was a compulsively perfectionistic 25 person whose perfectionism approached a degree of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1373 1 psychopathology. 2 Q. And your writing the word "perfectionist," on 3 the cover of Dr. Brady's deposition was a reference to 4 Mr. Forsyth, Sr., was it not? 5 A. I'm sure it was. Whether it has any 6 consequence or not, I don't know at this time, but I'd 7 be happy to look at whatever gave me that impression. 8 Q. And the other reference you wrote on the cover 9 of Dr. Brady's deposition, after you reviewed it for 10 this case, was a reference to religious pressure, 11 correct? 12 A. Yes. 13 Q. And that -- 14 A. I don't remember doing that, but I'll take your 15 word for it. 16 Q. I don't want you to take my word for it unless 17 you believe it to be so. 18 A. You seem pretty reliable to me. 19 Q. And your reference to religious pressure was 20 religious pressure on William Forsyth, Sr., correct? 21 A. Yes. I did feel that he had pressures on him 22 to come around religiously. 23 Q. So one reference you said was perfectionist, 24 and then you also made a reference to religious 25 pressure on him, right? Those are the references that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1374 1 you made on Dr. Brady's deposition? 2 A. I remember why I said religious pressure, but I 3 don't remember why I said perfectionist. 4 Q. Now, you also read the deposition of Dr. Riggs 5 Roberts in your preparation for this case, right? 6 A. Yes. 7 Q. And on the cover of Dr. Roberts' deposition, 8 you wrote the word "nihilism." You remember that? 9 A. Well, I don't remember writing it, but it's a 10 feature of depression. 11 Q. Okay. Could I ask you to refer to Page 66 of 12 your deposition. It's in the first volume. 13 Sixty-six, down at Line 25. Are you there? 14 A. Yes. 15 Q. Question -- were you asked this question and 16 gave this answer: 17 "QUESTION: The entry in your notes, nihilism, 18 what is the significance of that? 19 "ANSWER: At this moment, I don't know. It was 20 just something I wrote down as I read the deposition. 21 "QUESTION: Did that apply to Mr. Forsyth? 22 "ANSWER: Yes. 23 "QUESTION: What does nihilism mean? 24 "ANSWER: Sort of a pessimistic view of 25 things." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1375 1 Did you give those answers? 2 A. Yes. 3 Q. And your view that nihilism or a pessimistic 4 view of things, that applied to Mr. Forsyth before he 5 ever took Prozac, didn't it? 6 A. The reason he was given Prozac is because he 7 was depressed. That's the whole point. If I'm going 8 to give a depressed person a medication and it's 9 capable of making them act suicidally or murderous, 10 I'd like to know it before I do it so I can tell them, 11 if you feel bad, please call me any time of the day or 12 night, if you feel that the medicine is having some 13 negative effect. I don't mind being called in the 14 middle of the night. 15 Q. Now, in your view, it is clear that Mr. Forsyth 16 satisfied the diagnostic criteria and the requirements 17 to be diagnosed as having major depression before he 18 ever took Prozac? 19 A. Well, you have to put that in context. You 20 know, these criteria are committee decisions based on 21 the way things are at this time, and they're revised 22 every few years, so don't get confused that this 23 represents some sort of a specific entity in every 24 patient. It's a way we have of communicating with 25 each other. That's what DSM-IV is all about, these PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1376 1 various diagnostic and statistic manuals. 2 They come about by committee meetings, and the 3 committee says, well, let's see. What shall we 4 include in the diagnosis so that when we talk to each 5 other, we know what we're talking about. But those 6 things, you have to be careful not to make concrete 7 out of that. 8 That doesn't mean that -- every patient is a 9 little bit different. But, in general, there are 10 criteria for making that diagnosis, and they're listed 11 in the book and changed around periodically. 12 Q. Did Bill Forsyth, Sr. have major depression 13 before he took Prozac? 14 A. Well, he certainly was depressed and he met 15 many of the criteria for major depression and that's 16 why he was given the medicine. 17 Q. In fact, he satisfied the diagnostic criteria 18 for major depression before he took Prozac, didn't he? 19 A. Well, I really wouldn't argue that. 20 Q. Now, also, before Mr. Forsyth took Prozac, you 21 will agree that he had an anxiety disorder for which 22 he was prescribed a tranquilizer called Xanax, 23 correct? 24 A. Yes. But, you know, this writing here, I want 25 to make sure I understand what's going on since I'm PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1377 1 involved in this process. I guess I should know 2 what's happening here. I mean, is there the 3 implication that every patient that has a major 4 depression commits suicide? Is that why you're 5 writing that on the board -- on the pad there? 6 Q. I have no such implication. 7 A. I see. Well, I hope not. 8 Q. Now, you agree that before he took Prozac, 9 Mr. Forsyth's depression was not doing well; that is, 10 it was getting worse? 11 A. Well, he certainly wasn't getting better, 12 that's for sure. 13 Q. Not getting better? 14 A. That's right. 15 Q. And you will also agree that if, in fact, 16 Mr. Forsyth was not getting better in his depression 17 before he ever took Prozac, then that change in his 18 depression was not a result of Prozac? You agree with 19 that? 20 A. I think what you just said, I couldn't 21 understand at all. 22 Q. If -- let me ask it this way: If Mr. Forsyth's 23 depression was, in fact, worsening before he ever took 24 Prozac, then you would agree -- 25 A. This is a hypothetical? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1378 1 Q. Yes, it is. 2 A. Oh, okay. 3 Q. You would agree that Prozac didn't cause that 4 worsening, did it? 5 A. Well, I don't want to agree with that because I 6 think Prozac made him very much worse, so I don't want 7 to answer that yes. That's my whole opinion, 8 actually. 9 Q. So your testimony is that if Mr. Forsyth's 10 depression was getting worse before he took Prozac -- 11 A. I didn't say that. 12 Q. -- that worsening was caused by the Prozac? 13 A. I didn't say that at all. You got me to agree 14 that he wasn't getting any better. I didn't say he 15 was getting any worse. He wasn't getting better is 16 what I said, and I'm now saying that the addition of 17 Prozac to his regimen made him much worse, obviously. 18 It's so clear, it's remarkable. 19 Q. Mr. Forsyth was prescribed Pamelor, right? 20 A. Yes, he was prescribed Pamelor in 21 subtherapeutic doses. He never got even up to the 22 starting dose. 23 Q. And you agree that if, because of not being 24 prescribed enough, or whatever reason, the Pamelor was 25 not providing him relief from his depression? You PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1379 1 agree with that? 2 A. Well, if I'm correct, the starting dose of 3 Pamelor is 25 milligrams four times a day, and he 4 never got above 75 milligrams. I'd have to look in 5 the PDR. That used to be the starting dose. They may 6 have changed it. But, you know, that is generally the 7 starting dose of those types of antidepressants. 8 Some patients can't take that much and you have 9 to cut back and they do make 10-milligram size 10 tablets, and as I say, every patient is different from 11 every other one, but generally that's the starting 12 dose. So the poor guy never got therapeutic doses of 13 tricyclic antidepressants. 14 Q. Now, I want to ask you about the severity of 15 Mr. Forsyth's depression. There has been some 16 confusion about that in the courtroom. I want you to 17 clean it up. 18 A. I'd be happy to. 19 Q. After your review of all the records and all 20 the materials and depositions and sitting out in the 21 courtroom listening to witnesses testify as you did, 22 you agree that Bill Forsyth, Sr. was seriously 23 depressed before he ever took Prozac? 24 A. Well, if we're going to categorize depression 25 as not serious and serious, I would say his would be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1380 1 serious. It wouldn't be not serious. It was 2 impacting on the quality of life and he deserved 3 proper care. 4 Q. Because of Bill Forsyth's personality type, he 5 was a guy who had a hard time relaxing, do you agree 6 with that? 7 A. Well, I just don't have adequate -- I don't 8 feel comfortable agreeing to that because, you know -- 9 I wouldn't argue with it, but -- 10 Q. Well, I'm asking you whether you agree to it. 11 A. I don't know, he seemed pretty relaxed in the 12 videos I saw. He seemed to be having a great time, 13 and he was described by -- I did get to sit in on 14 other than the expert witnesses, and people described 15 him as an upbeat guy, and I didn't have the impression 16 that he was such a tense person that he couldn't 17 relate to people comfortably. I had the contrary 18 impression. 19 Q. All right. Well, I'll ask you this specific 20 question. It's true, is it not, that Bill Forsyth had 21 a hard time relaxing before he ever took Prozac? 22 A. Well, I think the -- what comes to my mind when 23 you say that is he was a person that felt more 24 comfortable accomplishing things, he was industrious, 25 he liked to be busy, he had numerous business PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1381 1 interests. He did a good job of it, and so, you know, 2 he might be called a Type A. I don't know whether 3 he's impatient at -- usually Type As are impatient at 4 red lights or in lines. They can't stand in lines. 5 They don't like waiting for doctor visits and things 6 like that, and they can get a little bit hyper under 7 such circumstances. 8 Now, whether he meets that criteria or whether 9 he's just a productive human being that enjoyed 10 working hard and accomplishing things, I don't know. 11 Q. Would you look at your deposition at Page 396, 12 that's Volume II, at Line 13. Do you see it? 13 A. Well, I can't argue that is what I see. 14 Q. All right. My question is, were you asked this 15 question and did you give this answer: 16 "QUESTION: In fact, he had a hard time 17 relaxing even before he took Prozac, didn't he? 18 "ANSWER: Well, I couldn't argue with that." 19 Did you give that answer? 20 A. Well, I don't feel I can argue it. It's my 21 impression that he was a productive guy. I don't 22 know. If somebody would tell me, I'd be happy to hear 23 about it -- 24 Q. Doctor -- 25 A. -- if he got uncomfortable at red lights and so PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1382 1 on, traffic jams. 2 Q. The question directed to you right now is, did 3 you get that question at your deposition and did you 4 then give that answer? 5 A. I think I'm saying the same thing now. I can't 6 exactly argue with it. I just don't know about that. 7 Q. You don't know whether you gave the answer? 8 A. No. It says right here, the same thing I said 9 here. "Well, I couldn't argue with that." 10 Q. And you agree that because of his personality, 11 Mr. Forsyth unfortunately was worried, nervous, 12 anxious, and obsessed before he ever took Prozac, do 13 you agree with that? 14 A. I don't know about the obsessed part. I don't 15 think I would necessarily agree to that. In general, 16 when you get depressed, it's like having a sore hip or 17 something. Every time you move one way or the other, 18 a sore back, you're reminded of it and so on, so it 19 tends to produce -- tend to get somewhat obsessive 20 depending on your fundamental personality. 21 When you're depressed, it's like having a 22 toothache. It's just one of those -- or a sore tongue 23 is a better analogy, because you can't do anything 24 without moving your tongue. It's constantly in 25 motion. Same thing is true with the back. Everything PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1383 1 you do, just reach for a glass and so on. So if 2 you're depressed, it has a pervasive effect on your 3 life and you can become obsessed with it. It's 4 usually part of a depressive syndrome. 5 Q. All right. Would you refer to your deposition. 6 It's Volume II at Page 399. I want to ask you about 7 line one. 8 A. Line which? 9 Q. One. 10 A. Line one. 11 Q. Yes. Were you asked this question and did you 12 give this answer: 13 "QUESTION: Dr. Shlensky, isn't it true that 14 Mr. Forsyth was worried, nervous, anxious, and 15 obsessed before he ever took Prozac? 16 "ANSWER: He was at times." 17 Did you give that answer? 18 A. Yes. 19 Q. I think you also have testified just now that 20 Bill Forsyth had been a very active person before he 21 became ill with depression? 22 A. That was my impression. 23 Q. And you would agree that being inactive was a 24 significant source of stress to Bill Forsyth? 25 A. Well, I've heard conflicting information about PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1384 1 that sitting here because some people thought that he 2 kept busy anyway in spite of the fact that he sold his 3 business, because he had other interests and so on. 4 And sometimes you don't know which is first, the 5 chicken or the egg. 6 For example, there are various things about the 7 whole matter that I could see reflected a point of 8 view at a particular time, and when somebody is 9 depressed, they make take a particular view of 10 something that they wouldn't have ordinarily. That's 11 one of the features of depression. 12 Q. Dr. Shlensky, do you agree or disagree that 13 Mr. Forsyth's being inactive during the time he was 14 depressed, was a significant source of stress to him? 15 A. Well, if I give a created answer, I'm afraid 16 you're going to come back and point out some place 17 where I agreed to that point of view in 1997, but I 18 have evolved since then. And as a matter of fact, I 19 really couldn't sit through the things that I've seen 20 in the last few days and not learn some things, so I 21 think -- you know, I don't know, at this point, 22 whether his -- these depressions in people, in men, 23 they are sort of like menopausal depressions in women. 24 They get to a certain stage in life where the kids are 25 grown up, their husband is busy with his own work, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1385 1 he's achieved a certain level of career, and there's 2 sort of like a stage -- it's another stage of 3 psychosexual development or development of the human 4 being. It doesn't just happen in childhood. It 5 happens throughout life, hopefully. So we can still 6 develop even when we're old. 7 Now, this happens in men. They get to a 8 certain stage of their career. Perhaps they feel 9 they've done it already and things are different. 10 There are changes in their circumstances, as has been 11 pointed out here, more time with the wife and so on, 12 so these evolutional depressions are not uncommon, and 13 sometimes they're worse than other times. And, 14 generally, they're quite responsive to proper care. 15 If you give them the wrong stuff that has 16 terrible side effects, it's breaking the cardinal rule 17 of medicine, which is do no harm, but you've got to 18 know about it. 19 Q. Back to Bill Forsyth for a second. Do you 20 agree or disagree that his inactivity was a 21 significant stress to him? 22 A. Again, I want to give you straightforward clear 23 answers, but I don't want to -- I have to say what I 24 believe now. So I don't know whether that was a 25 feature of his depression, that he was complaining PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1386 1 that he wasn't active enough, or he felt that way or 2 he needed to be more active, or whether the 3 inactivity -- and it's probably both answers are 4 correct. Because generally speaking, that's the way 5 life is. There are usually multiple dimensions to any 6 significant development along those lines. 7 Q. You will agree that as Mr. Forsyth's depression 8 wore on in January and February of 1993, he became 9 fearful that he would not recover? 10 A. That's characteristic of depression. If you 11 thought you were going to recover, you wouldn't be so 12 depressed. 13 Q. And it happened to Bill Forsyth in January and 14 February of 1993, didn't it? 15 A. I think he was clearly depressed. Should have 16 had proper care. I have reiterated that a number of 17 times. 18 Q. The question was, did Mr. Forsyth become 19 fearful that he would not recover in January and 20 February of 1993? 21 A. Well, I don't know specifically. I don't 22 remember seeing that in some medical record or 23 something like that, so I don't want to stick my neck 24 out, but as I say, it is a feature of depression. 25 Anybody who's ever been depressed will tell you, if PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1387 1 you think you're going to feel better tomorrow, you 2 wouldn't be that depressed. 3 Q. So with respect to Bill Forsyth, Sr., is it 4 don't know? 5 A. Well, I'm blocked there. What's the issue 6 we're discussing here? 7 Q. From your review of all the materials you've 8 looked at in the case, don't you agree that in January 9 and February of 1993, Bill Forsyth became fearful that 10 he would not recover from his major depression? 11 A. Well, I don't have a specific recollection of 12 such a comment in his medical record, but I wouldn't 13 be surprised if he felt that way. 14 Q. So don't recollect would be a fair answer? 15 A. It's okay. I think the one I gave was better, 16 but that's a shortcut. 17 Q. And would you agree that because of depression, 18 during January and February of 1993, Bill Forsyth 19 became dependent upon his wife, June? 20 A. Let me see about that. I'm sitting here trying 21 to decide how subtle to be about this. In other 22 words, was he really dependent or did he just feel 23 more comfortable when she was around? You know, these 24 are all such complex concepts. 25 I mean, he wasn't really dependent on her. As PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1388 1 the evidence has shown, he went off on his own to get 2 a coffee. He even, you know, at some point, went to 3 L.A. by himself. He wasn't really dependent on her, 4 but there were apparently times when he felt much more 5 comfortable if she were available to him. You know, 6 if you want to call that dependent, I don't know. It 7 is just a subtle thing. I wouldn't argue the point, I 8 guess. 9 Q. Well, let me ask you to go to Page 523 of your 10 deposition, and that's in Volume III. 11 A. I don't think I have Volume III up here. I 12 think you only gave me two. Oh, that's a thin one, I 13 see. Which page? 14 Q. 523 at Line 8. Were you asked this question 15 and did you give these answers: 16 "QUESTION: Would you agree that in the last 17 two months of his life, Mr. Forsyth became dependent 18 upon his wife because of the severity of his major 19 depression? 20 "ANSWER: You know, the problem with the 21 question is that these words are -- are so far 22 reaching, dependent. I can't agree that Mr. Forsyth 23 became dependent on his wife. 24 "QUESTION: You cannot agree to that? 25 "ANSWER: No. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1389 1 Did you give that answer? 2 A. Isn't that just what I said, you know, before 3 you directed me to this thing? 4 Q. So your response is, to my question, did 5 Mr. Forsyth become dependent upon his wife because of 6 his major depression in January and February of 1993, 7 your answer to that is no, correct? 8 A. Well, I think my answer was much more 9 complicated. It was similar to the answer I gave 10 here. It's a complex thing. The problem with that 11 question is these words are so far reaching, 12 dependent. I can't agree. 13 You know, if I'm dependent on an adequate 14 supply of air, if I don't get an adequate supply of 15 air, there's going to be one thing on my mind only, 16 air. And -- now, you could say, well, are you 17 dependent on your occupation as a way of making a 18 living? Well, it depends on what you mean by 19 dependence. 20 I don't think he was really dependent on his 21 wife. I know that sometimes he felt uncomfortable, at 22 least that's what I understand, that he felt 23 uncomfortable at times during a certain period if she 24 were not around, but I also heard evidence at those 25 particular times, he tended to go get a coffee just to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1390 1 get away from her. So, you know, whatever. I'm not 2 sure what the point is. I mean, the fact is that he 3 was depressed and, you know, came out very poorly. 4 Q. So your answer about Bill Forsyth becoming 5 dependent on his wife in January and February of 1993, 6 your answer to that is you can't agree with that; is 7 that fair? 8 A. That's a complex -- the dependency thing is a 9 complicated thing. I don't want to get simplistic 10 about it, that's all. So, you know, depending on how 11 you mean dependent, I might agree with it or I might 12 not, that's all. 13 Q. All right. So your answer, then, is you might 14 or might not agree; is that fair? 15 A. That's fair, yeah. I hope you understand I 16 really want to give you good answers. I'm just trying 17 hard not to say something misleading. 18 Q. Now, again, based upon your review of all the 19 materials that you've looked at about this case, the 20 hospital records and the doctors' charts and the 21 depositions, you do agree that Bill Forsyth had 22 suicidal thinking before he ever took Prozac, correct? 23 A. Well, I think there was some indication of that 24 possibility in the record, but that's a part of every 25 depression. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1391 1 Q. Is that fair, suicidal thinking before Prozac, 2 Dr. Shlensky's answer to that is yes? 3 MR. VICKERY: I object to that, Your Honor. 4 The only reference in any record indicating suicidal 5 thinking is -- 6 THE COURT: Well, I think he just said yes. Is 7 that right? 8 THE WITNESS: Well, I'm confused. Let's start 9 over again. I got lost there. There are things that 10 immediately come to my mind, and again, there are 11 certain subtleties, you know, for example, did he 12 raise or cause alarm in his son by making some 13 comment? 14 Now, when a psychiatrist hears about that, we 15 always think the way things come out is meaningful, so 16 if he stirred up some anxiety in his son by making 17 some misstatement or what he represented as some 18 misstatement, I just would consider that, perhaps 19 without realizing it, he let people know that he was 20 very uncomfortable, and if I'm not mistaken, that was 21 during -- right after he got Prozac, and I know that 22 he got very uncomfortable on Prozac. 23 Q (By Mr. See) Okay. Would you look at your 24 deposition. It's the third volume again, Page 525. 25 THE COURT: 525? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1392 1 MR. SEE: Yes, sir. 2 Q. At Line 12. Were you asked this question and 3 did you give this answer: 4 "QUESTION: Would you agree, Dr. Shlensky, that 5 based upon your review of all the materials provided 6 to you about Mr. Forsyth, that Mr. Forsyth experienced 7 suicidal thinking prior to the time that he ever took 8 Prozac? 9 "ANSWER: I believe so, but it's quite 10 characteristic of depression to think about suicide." 11 A. That's exactly what I said here five minutes 12 ago. Is this supposed to be a challenge of what I 13 just said? I apologize for asking, but I really would 14 like to know if I'm missing something because I 15 thought I just said that. 16 Q. I believe so, that was your answer, right? 17 A. I thought there was an implication that I was 18 giving a wrong answer that didn't agree with my 19 deposition. 20 Q. Do you agree that Mr. Forsyth became hopeless 21 before he ever took Prozac? 22 A. Well, let me give this due consideration. I 23 don't have any reason to think that. 24 Q. And would you agree that in the last two or 25 three months of his life, Bill Forsyth felt trapped in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1393 1 his marriage? 2 A. I thought that they got it together, actually, 3 and that's my impression. 4 Q. So your answer would be no? 5 A. I thought they actually had a good marriage. 6 You know, there's so much divorce and so on, people go 7 through all these crises and they don't have proper 8 help. They don't really know how to deal with 9 conflicts, but they really care for each other and, 10 you know, that's the way I construe what happened. 11 Two people who really cared for each other, who had 12 certain conflicts, with a little help, they could get 13 through, and I thought that's what happened with 14 Dr. Brady. 15 Q. So in response to my question that in the last 16 two or three months of his life, did Bill Forsyth feel 17 trapped in his marriage, your answer would be no; is 18 that correct? 19 A. That's correct. 20 THE COURT: How much longer do you have, 21 Mr. See? 22 MR. SEE: At the very least, an hour, probably 23 longer. 24 THE COURT: Okay. It's four o'clock. We'll 25 break until nine o'clock tomorrow morning. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1394 1 (Whereupon, the following proceedings were 2 adjourned at 4:00 p.m. to be reconvened on 3 Wednesday, March 17, 1999 at 9:00 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 1395 1 C E R T I F I C A T E 2 --ooOOoo-- 3 I, TINA M. STUHR, Official Court Reporter, 4 United States District Court, District of Hawaii, 5 Honolulu, Hawaii, do hereby certify that the foregoing 6 is a correct partial transcript of proceedings in 7 Civil No. 95-00185ACK, Susan K. Forsyth, et al. vs. 8 Eli Lilly and Company, et al., at Honolulu, Hawaii, on 9 March 16, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 20, 1999. 12 13 ______________________________________ TINA M. STUHR, RPR, CSR #360 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU